Matthew Mitchell v. Commonwell Mutual Insurance Group, 2017 ONFSCDRS 202

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 202

FSCO A15-001519

BETWEEN:

MATTHEW MITCHELL

Applicant

and

COMMONWELL MUTUAL INSURANCE GROUP

Insurer

DECISION

Before: Arbitrator Charles Matheson

Heard: On June 20-28, and July 18, 2017 in Toronto

Appearances: Mr. David E. Preszler, lawyer, for Mr. Mitchell

Ms. Linda Matthews, lawyer, for Commonwell Mutual Insurance Group

Issues:

The Applicant, Mr. Matthew Mitchell, was injured in a motor vehicle accident on May 17, 2013. He applied for and received statutory accident benefits from Commonwell Mutual Insurance Group (“Commonwell”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Mitchell applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Did Mr. Mitchell sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
Is Mr. Mitchell entitled to receive a weekly income replacement benefit in the amount of $400.00 from October 2, 2015 to date and on-going?
Is Mr. Mitchell entitled to attendant care benefits commencing May 17, 2015, to date and on-going?
Is Commonwell liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mitchell?
Is Mr. Hamilton entitled to interest for the overdue payment of benefits?
Is Dominion liable to pay Mr. Hamilton’s expenses in respect of the arbitration?
Is Mr. Hamilton liable to pay Dominion’s expenses in respect of the arbitration?

Result:

The applicant sustained a catastrophic impairment as a result of the May 17, 2013 accident.
The applicant is entitled to income replacement benefits as a result of the May 17, 2013 accident.
The applicant is entitled to receive attendant care benefits commencing forthwith.
The insurer is not liable to pay a special award.
The applicant, in regards to the income replacement benefits, is entitled to interest for any overdue amounts, in accordance with theSchedule.
The applicant is entitled to interest for the overdue amount, in accordance with the Schedule for the overdue payment of benefits.
Should the parties become unable to resolve the issue of expenses, they shall subsequently schedule an expense hearing before me in accordance with the provisions of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Table of Authorities Considered

Insurance Act, RSO 1990 c I.8, s 282(10)

Statutory Accident Benefits Schedule - Accidents on or after September 1, 2010, O. Reg. 34/10

The Dispute Resolution Practice Code- Fourth Edition, 2014

American Medical Association’s - Guides to the Evaluation of Permanent Impairment, 4th edition, 1993

Courts of Justice Act, RSO 1990, c C.43,ss 96(3) & 97

Liu v 1226071 Ontario Inc (cob Canadian Zhorong Trading Ltd), 2009 ONCA 571

White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC

Security National Insurance Co v Hodges, 2014 ONSC 3627

Pastore v. Aviva, 2012 ONCA 642

Grewal and AIG (FSCO Appeal P14-00032 August 13, 2015)

DM v Portage La Prairie Mutual Insurance Co. [2014] OFSCD No 150

WA v Unica Insurance Inc. [2017] OFSCD No. 83

Cowans and Motors Insurance (FSCO A09-003237, October 15, 2010)

Brazier v RBC General Insurance Co, [2009] OFSCD

Henry v Gore Mutual Insurance Co, 2013 ONCA 480

Terry v Wawanesa Mutual Insurance Co, [2001] OFSCID No 102

McLeod v State Farm Mutual Automobile Insurance Company (FSCO A10-000755, May 25, 2012)

Burtch v. Aviva 2009 ONCA 479

Smillie and State Farm Mutual Automobile Insurance Co., (FSCO A02-000039, September 12, 2003)

Neumeyer v Wawanesa Mutual Insurance Company, 2005 CanLII 27522 (ON SC), [2005] OJ No 3314

Tournay and Dominion of Canada General Insurance (FSCO A05-000507, July 20, 2006)

Background

The applicant was a 30 year old single father, who had sole custody of his oldest daughter at the time of the subject accident. The applicant was employed as a drywall installer. The applicant enjoyed an active life prior to the accident with an active social and recreational calendar. The applicant completed a grade 11education.

The applicant has worked his entire career in the construction industry, all of which required extensive manual labour. The applicant has had chronic back pain issues over the years, and has sought out many different forms of pain relief. The applicant candidly admits to making a series of poor life choices in the past as he was abusing one substance or another at various times, over the decade prior to the accident, including narcotics. The applicant self-identified as a functioning addict. The applicant has no memory of the accident. The applicant is currently engaged, and has been for the last two years, in a methadone program.

Decision

Issues

Did Mr. Mitchell sustain a “catastrophic impairment” as a result of the accident within the meaning of the Schedule?

The applicant is seeking a catastrophic impairment determination as a result of the May 17, 2013 accident on two grounds. The first being the applicant suffered a brain impairment that resulted in a Glasgow Coma Scale of 9 or less as per section 3(2)(d)(i) of the Schedule. Secondly, the applicant argues that he has sustained a marked impairment due to mental or behavioural disorder as per section 3(2)(f) of the Schedule.

The applicable section of the Schedule reads as follows:

(2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

(a) paraplegia or quadriplegia;

(b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;

(d) subject to subsection (4), brain impairment that results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

I will address the Glasgow Coma Scale (GCS) arguments first.

The insurer argues that their theory of the accident is that the applicant had a low GCS score prior to the accident. The insurer argues that the applicant past out or was unconscious moments prior to the accident. The insurer argues the applicant already had a low GCS score, which was caused by a combination of his drug abuse and high blood sugar count of 32 millimoles per liter and not because of any brain injury that may have been incurred as a result of the accident.

Undisputed facts of the case are as follows:

For approximately six months prior to the accident the applicant had been prescribed 60 milligrams (mgs) of oxyneo by his family doctor,
The applicant was taking two 30 mg pills daily – once in the morning and another during the afternoon,
The applicant began self-medicating sometime in 2013 with an additional 40 mgs of oxyneo taken at night to help the applicant sleep,
On the day of the accident, the applicant had dropped off his daughter at his parent’s house for the weekend,
On the day of the accident the applicant had been speaking to his father only minutes prior to the accident,
The applicant was on his way to a cottage to meet with friends so they could “party”,
The applicant had in his possession a bottle of an unidentified number of different narcotics,
The applicant’s father testified that the applicant did not appear to be under the influence of any substance during their discussion in the driveway,
The accident occurred approximately 7 kilometers from the parents driveway,
Witnesses of the accident saw the vehicle’s front right tire hit the gravel shoulder of the road and then swerve in front of them and into the opposite ditch, where the vehicle rolled over and hit a tree,
The applicant was found lying across the front dashboard of the vehicle, unconscious,
Ambulance Call Report #1 indicates GCS score of 9 out of 15 at 20:44,
The applicant was administered a Narcan drip, where some 13 minutes later the applicant began to respond with higher GCS scores as high as 14 out of 15,
The applicant was transported to the Bellville Hospital, where among other things, they found his neck to be broken,
The applicant was then transported to the Kingston hospital,
Ambulance Call Report #2 indicates GCS scores of 3 out of 15 at 22:47, 23:00, 23:15, 23:23
CT: subarachnoid hemorrhage posterior left temporal lobe and small focal anterior right parafalcine subdural hematoma.
MRI taken on May 21, 2013 confirmed the findings of the CT but also noted cortical swelling involving the left lateral orbital gyrus in keeping with contusion injury. The susceptibility weighted sequence demonstrates a few areas of tiny parenchymal hemorrhage within the left front lobe, all measuring 2-3 mm in size, in keeping with diffuse axonal injury.
The drug tests done by the hospitals showed that the applicant had no drugs in his system, other than the cannabis shown on the results of a drug test administered at Kingston General Hospital,
The applicant was found to have hyperglycemia and/or his blood sugar which was 32 millimoles per liter.

Testimony and evidence on the GCS issue:

Dr. Lisa Becker’s Report dated August 25, 2014 indicates that GCS scores recorded at the scene of the accident, initially 9 out of 15 and increasing to 14/15 within 13 minutes in spite of high glucose level and reported opiod medications, in my opinion points to the effects of the traumatic brain injury."
Dr. Harold Becker's documentation review indicates GCS scores of 3 on transfer to Kingston General Hospital and his testimony confirmed that there was no sedation or intubation at the time. The applicant was simply unconscious,
Dr. H. Becker testified to the effect that the applicant's reduced level of consciousness and lowered GCS scores was proof in and of itself of brain impairment,
Dr. H. Becker suggests that the first ambulance record recorded a GCS score of 9 at the scene of the accident. The doctor suggests that this should have been recorded as an 8,
Dr. H. Becker suggests that Narcan is a nerve inhibitor and prevents the nerves in the brain from interacting with opiates, however, Narcan does not flush out or neutralize opiods from the body,
Dr. H. Becker opined that the applicant would need to be at a GCS score of 11 or less in order to pass out and lose control of the vehicle, and that this would need to happen within the time it took to drive 7 km. The doctor was unable to explain the rapid descent in score if the decent actually happened,
Dr. H. Becker was also unable to explain the rapid ascent to a score of 15 out of 15 while the applicant had previously continued to exhibit a GCS score of 3 over a two hour period,
Dr. Harold Becker further testified that Narcan does not remove opioids from the system and that Narcan would not affect a blood or urine test screening for opioids,
The Bellville Hospital’s drug tests do not show any opioids in the applicant’s blood,
The Kingston Hospital’s drug tests shows cannabis, only, in the applicant’s system,
Dr. Gary Moddel in his report dated January 29, 2015 states in answer to question 1: "The minor closed head injury that he [the applicant] suffered would account for his significant decreased level of consciousness...",
Dr. Moddel further adds in answer to question 2 of his report: "The GCS of 9 out of 15 was, in large part, related to drugs and hyperglycemia.”
On examination-in-chief Dr. Moddel testified that the GCS of 9 taken at the scene of the accident was on the basis of metabolic issues and opiates and not a structural brain issue. He opined that one would not significantly improve over short period of time if the impairment was not caused by overdose and was caused by a structural brain issue,
On cross examination Dr. Moddel admitted that some measure of the applicant’s Tramatic Brain Injury (TBI) caused his reduced level of consciousness. He further agreed that:

o the creators of the GCS, Jennett and Teasdale considered confounding factors like diabetes and drug use,

o that there was no evidence that the applicant was sedated or intubated at the time that any of the GCS 3 scores in evidence were taken,

o that there was no evidence that any of the scores were invalid or not taken within a reasonable time after the accident.

Dr. Moddel testified that he could tell if a person had a brain injury just by looking at them,
Dr. Zakzanis testified that all the indicators of a severe brain injury were present.
Dr. Kurzman in both of his reports opines that the applicant sustained a moderately severe traumatic brain injury,
The applicant required sedation and restraints in order to prevent further physical injury, for an extended period of time after the accident as he was showing the classic signs of a closed brain injury when he would awaken confused and angry.

At the end of the hearing there was still no direct evidence that the applicant fell asleep, passed out or was unconscious prior to the accident. There is no direct evidence that the GCS score of the applicant prior to the accident was as low as 9. The insurer simply suggests that the applicant had a lower GCS score without providing any alternative numbers or logic for said alternative GCS scores. Dr. H. Becker testified that a GCS score of 11 or less would render the applicant unable to drive. So even if the insurer is correct in their assumption a GCS score of 10 is possible prior to the accident, which would make the GCS score of 8 or 9 after the accident valid and as a direct result of the accident.

These theories are speculation at best. There is no evidence as to what amount of recreational drugs were missing from the bottle or if the applicant did self-medicate with extra oxyneo earlier than the applicant’s regular habits dictate. There was no direct evidence on how fast any of the narcotics act on a stationary body, if they were taken.

The insurer relies upon the applicant’s recovery or bounce back from the introduction of the Narcan to his system as proof of an overdose, thus he must have been unconscious prior to the accident. The hospital staff and first responders have no idea that he is prescribed 60 mg per day of oxyneo from his family doctor. The hospital records continue to note an overdose of opioids. These are reasonable responses by the medical practitioners in light of the information before them at that time, but in my view, should not be held as conclusive evidence of a low GCS score prior to the accident. In my view, the short recovery or bounce back is a reasonably expected response when you take into consideration the level of oxyneo we now know is in the applicant’s system, coupled with the fact that Narcan is supposed to neutralize the effects of opioids. The insurer and their experts were unable to explain the four different GCS scores of 3 during the second ambulance transfer to the Kingston Hospital, other than these reading are wrong as they don’t match the nurse’s notes during the transfer. I note that there is no direct evidence that these notes were taken contemporaneously or who made these hand written notes.

I note that none of the first responders or the emergency room hospital staff gave evidence at this arbitration. The training of the first responders in order to administer the GCS test has not been raised, nor has the timing of said tests been challenged.

There is no direct evidence as to the effects high blood sugars levels have on the applicant and how its effects dovetail or overlap with the opioids cocktail the insurer theorizes on. Could the prescribed oxyneo interact with the high blood sugars and cause the applicant to pass out? Dr. Moddel suggests under examination that the low GCS score of 9 was due to a drug overdose along with high blood sugars, but then he says that the high blood sugars would have inhibited the metabolization of the opioids. Dr. Moddel did not explain why a functioning addict / diabetic with no history of losing consciousness would suddenly do so. Dr. Moddel did not explain how in an extremely short period of time, with his high blood sugar levels that would interfere with the ingestion of the drugs, would pass out so quickly. Dr. Moddel did not explain the four GCS scores of 3 over the two hour ambulance ride from Bellville hospital to the Kingston hospital while the Narcan drip continued. I remain unconvinced that the insurers theory is correct, as the applicant has admitted to taking 100 mg per day prior to the accident and did not report or was not found to be unconscious at any time prior to the accident.

The inescapable evidence by all accounts of the expert doctors, treating physicians and health care practitioners and their respective reports, is that the applicant suffered a closed head injury as a direct result of the May 17, 2013 accident. The severity of the injury has been termed as mild to severe. In my view, the resulting brain impairments of the closed head injury are clear and apparent, as I witnessed same while the applicant was testifying.

I found that the applicant and his father were believable and the veracity of their testimony to be profound and beyond reproach.

The applicant relies on the following legal presidents in support of their prima facie case:

In Security National v. Hodges, the Divisional Court states at paragraph 18:

The regulation also requires that the brain impairment be “in respect of an accident”, so the starting point is to determine whether the person sustained a brain injury that is a reason for some brain impairment. In this case, if the MRI or CT scan of August 7th had shown no brain injury whatsoever (or a brain injury that was so minor as to not impair consciousness whatsoever) there would be no brain impairment “in respect of an accident”. However, in this case, even Dr. Berry agrees that the injury to Mr. Hodges’ brain was accident related and resulted in at least some brain impairment. There is no requirement that the brain injury by itself would have reduced a GCS score to 9 or less. It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant for the purposes of the definition in the SABS.

Underlined for added Emphasis

In Liu et al. v. 1226071 Ontario Inc., the Court of Appeal states starting at paragraph 27 and concluding at paragraph 30:

In my view, the answer to the respondents' objection is the plain language of the legislation. Provided there is a brain impairment, all that is required is one GCS score of nine or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.

I agree with the appellant's submission that the fact that there may have been other higher scores also within a reasonable time after the accident is irrelevant.

In my view, the trial judge fell into error in equating the statutory test to a medical one. It is not.

Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation, must be discarded when considering whether a claimant meets the statutory test. The statutory scheme creates a bright line rule which is relatively easy to apply. This enhances the ability of those looking to the definition to know what injuries will and will not be considered catastrophic. Having the same definition for both no-fault and third-party liability claims avoids inconsistency. The ease with which the rule can be applied adds an element of predictability which will facilitate the settlement of claims.

Underlined for added Emphasis

In my view, the applicant was successful in presenting his prima facie case and therefore I find, on the balance of probabilities to have a GCS score of 9 or less according to a test administered within a reasonable period of time after the accident by a person trained for that purpose.

Therefore, for the above reasons I find that the applicant sustained a catastrophic impairment as a result of the May 17, 2013 accident. I also find no need to discuss or comment on the marked impairment issue.

Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 from October 2, 2015 to date and on-going?

The applicable section of the Schedule for the income replacement benefit is Part II s.5 and 6, which reads as follows:

Eligibility criteria

(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or

ii. was not employed at the time of the accident but,

A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

B. was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and

C. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

The insured person,

i. was a self-employed person at the time of the accident, and

ii. suffers, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his or her self-employment. O. Reg. 34/10, s. 5 (1).

(2) Despite subsection (1), an insured person is not eligible to receive income replacement benefits if he or she is eligible to receive and has elected under section 35 to receive either a non-earner benefit or a caregiver benefit under this Part. O. Reg. 34/10, s. 5 (2).

Period of benefit

(1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.

(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

The parties have agreed that it is the burden of the applicant to show that because of the May 17, 2013 accident he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience in order to be successful in claiming an income replacement benefit (IRB). Further the parties have not raised an issue as to quantum of the IRB.

The insurer conducted post 104 week multidisciplinary assessments to determine whether the applicant meets the test for entitlement to income replacement benefits. The multidisciplinary assessments were conducted by Dr. Gharsaa, orthopedic surgeon, Dr. Moddel, neurologist, Dr. Jeffrey Karp, psychologist and psycho vocational expert, John Haratzis, physiotherapist to conducted functional abilities evaluation. The experts concluded that the applicant did not meet the test for entitlement to income replacement benefits.

The applicant submits that there are three tests which must be met by the applicant, in order to be eligible for an Income Replacement Benefit (IRB). The case law on this issue demonstrates that the test regarding entitlement to post 104 week IRBs is applied in three stages:

the accident related impairment(s) are to be identified;
the alternative employment options that are available in an area proximate to the insured person and for which the insured person is qualified are identified.
an assessment is made as to whether the insured person can reasonably be expected to be able to perform the activities associated with each of the identified alternative employment options, given his or her identified impairments, in a sufficiently proficient, consistent and reliable manner as to render them competitive in the marketplace.

The applicant argues that in respect of the first part of the test, the applicant's accident related impairments arising from his traumatic brain injury include a neurocognitive disorder, attentional issues, problems with concentration, memory, depression, anxiety, low mood, and sleep issues. All of these issues were summarized and focused on when Dr. Kurzman (the applicant’s Neuropsychologist) concluded that the applicant had a marked impairment in both spheres of concentration, persistence and pace and deterioration or decompensation in work or work-like settings.

In respect of the second part of the test, none of the jobs which the insurer has identified are suitable. Dr. Kurzman and Diana Kudela (the applicant’s Occupational Therapist) specifically outline why said jobs are not suitable. While said jobs may meet the remuneration and prestige requirements they all fail on the proximity and availability requirement. None of the jobs the insurer identified are available within the Belleville area. Having to drive up to 3.5 hours when, at the time of reports, the applicant did not possess a valid drivers' license, can hardly be said to be proximate. Furthermore, Dr. Karp himself acknowledges that only one of the jobs he selected had any prospect of availability is an Orderly. For the applicant, a person with known addiction issues to be employed in a hospital based setting, where prescription medications are kept can hardly be considered suitable. Given that none of the other jobs were available the insurer has failed to discharge its burden in this context.

In respect of the third stage of the test, the applicant relies on the opinions of Dr. Kurzman and Ms. Kudela to support his post-104 week IRB claim. Both are of the opinion that the applicant is incapable of working at any job for which he is reasonably suited by training, experience or education (as a result of his various impairments) and, that at present, he is totally disabled and cannot be expected to perform at the minimal standards expected for employment in a competitive workplace, by a reasonable employer.

Finally, the applicant argues that none of his treating doctors (Sandra Norris, Eric Smith) have ever cleared him to return to work. Rather, they have supported him in his efforts to obtain ODSP.

In my view, I agree with the insurer’s assessors in that the applicant can, on any day, do the physical requirements of the jobs found by the insurer, for a day. I believe that the applicant could perform the duties of a forklift operator or a telemarketer or call center attendant for a day. The insurer and their assessors focus on the applicant’s physical limitations are fatal to the position.

In my view, the insurer’s assessors errored in their assessments when the assessors failed to take into account the long term work week. The applicant has shown over time that when he feels his chronic back pain he sinks into a depression where he stays for days. What employer wants a new employee who continually misses work? In my view, the insurer’s assessors also failed to take into account the applicant’s cognitive/ memory and speech deficits, which their own catastrophic assessors acknowledged do exist. I remain unconvinced that the applicant could successfully and consistently complete (on a regular basis) the bona fide job performance requirements (quality and quantity) or expectations of a reasonable employer, even if they were available within a reasonable distance from his home, and they were not.

For these reasons I find that the applicant is entitled to income replacement benefits of $400.00 per week commencing October 2, 2015 to date and on-going.

Is Mr. Mitchell entitled to attendant care benefits commencing May 17, 2015, to date and on-going?

The applicable section of the Schedule reads as follows:

(1) Attendant care benefits shall pay for all reasonable and necessary expenses,

(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Long-Term Care Homes Act, 2007 or a chronic care hospital; and

(b) that, to the extent any of the expenses referred to in clause (a) are for transportation, are authorized transportation expenses for which no medical benefit described in clause 15 (1) (g) is payable, no rehabilitation benefit described in clause 16 (3) (k) is payable and no amount is payable under subsection 25 (4).

(2) Subject to subsection (3), the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled “Assessment of Attendant Care Needs” that is required to be submitted under section 42 and is calculated by,

(a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care; and

(b) adding the amounts determined under clause (a), if more than one type of attendant care is required.

(3) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 5 of subsection 28 (1) has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

Unless increased by any optional benefits available to the insured person in accordance with paragraph 4 or 5 of subsection 28 (1), the amount of the attendant care benefits paid in respect of the insured person shall not exceed, for any one accident,

i. $1,000,000, if the insured person sustained a catastrophic impairment as a result of the accident, or

ii. $36,000 in any other case.

If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 5 of subsection 28 (1) has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the monthly limit under subsection 28 (6).

The applicant concedes that there are no incurred attendant care expenses since the termination of the benefit. Therefore I agree with the insurer that any retroactive benefits prior to the release of this award is inappropriate and outside my jurisdiction to order.

The insurer argues that attendant care benefit is not reasonable or necessary for the applicant as Mr. Ford’s occupational therapist report of June 2015, suggests attendant care is not required.

The applicant argues that the applicant’s general health has declined as he continues to lose weight, and the applicant has been hospitalized twice since the attendant care benefit has been terminated because the applicant forgets to take his insulin. Further, the applicant argues that should he be deemed catastrophic, his entitlement to ongoing attendant care quantum should be either reflective of his current attendant needs and or in accordance with the Form 1 dated May 22, 2015 by Diana Kudela, which I could order.

The applicant argues that in Fernandes and Certas FSCO Appeal P06-00030, Director’s Delegate Blackman found that a Form 1 does not bind an arbitrator and that the onus is on the applicant to establish on a balance of probabilities that the attendant care sought was reasonable and necessary.

The applicant submits that his current needs could be determined by way of a new Form 1 or as per Fernandes, by way of Order. An Arbitrator has the discretion to determine the reasonableness, necessity and or quantum of attendant care needs with or without a Form 1.

In my view, an extended period of time has elapsed since anyone has properly determined the needs of the applicant in regards to the attendant care benefit, therefore it is appropriate that a new Form 1 be submitted to the insurer for a proper and timely response, within 30 days of this award’s release.

In light of my earlier decision that the applicant is catastrophic, I now find that the applicant is entitled to receive attendant care benefits commencing forthwith.

Is Commonwell liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mitchell?

The parties agree that subsection 282 (10) of the Insurance Act provides arbitrators with the authority to make a special award if the arbitrator finds that the insurer has “unreasonably withheld or delayed payments” to the applicant.

The applicant submits that the insurer is liable to pay a special award because it unreasonably withheld or delayed payments to the applicant in particular the insurer should pay a special award of 50% on any IRB payments or on any medical rehabilitation benefits settled prior to this arbitration.

The applicant argues that the insurer failed to properly execute their obligation of good faith to adjust this file in the insureds best interest. The applicant supports this argument by highlighting several points in which the insurer has acted inappropriately and such actions warrant sanctions for such actions. Said actions should be considered aggravating factors which go beyond the normal of withholding benefits:

the insurer did not provide the applicant with an OCF-19 or inform the applicant after receipt of the hospital records that the applicant may be entitled to catastrophic benefits as he had multiple GCS scores of 9 or less. This also violates the insurer’s own AB Handling Guides,
the insurer served surveillance of the witness served late (served days prior to the hearing, which was excluded ). The applicant submits that this action was a stalling tactic or an aggressive negotiation/intimidation tactic to frustrate the applicant into settlement or further delays in the arbitration,
the insurer withheld, lost on purpose or removed on purpose the most critical page from the Kingston hospitals records- page 4 of 28. This page is the smoking gun which would have undermined the insurer’s position that the GCS score was the result of an opioid overdose. This missing page was the urine analysis report of the applicant,
the insurer did not hire a neuropsychologist to investigate the post 104 benefit this is in spite that the applicant’s injuries were primarily a result of a traumatic brain injury, and where their own expert states that neuropsychology is the gold standard in terms of assessing impairments and brain injuries.

The insurer argues that “unreasonable withholding or delay of benefits” for the purposes of determining entitlement to a special award has been held to mean “behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and that benefits cannot be said to have been unreasonably withheld if there was an acceptable basis for not paying them.

Further, the insurer argues that considerations guiding the inquiry into whether an insurer’s conduct warrants a special award include:

An insurer is not held to a standard of perfection;
A claims decision is to be judged on the basis of the information available at the time, and not from hindsight;
An insurer is not to be found unreasonable just because an arbitrator concludes its claims decision was wrong.

The circumstances of this particular case, includes whether it is complex and challenging to adjust is relevant to whether the adjusters decisions were reasonable and whether a special award should be granted. The insurer submits that this case is unique and complex. To the insurer’s knowledge, there is no prior case law considering catastrophic impairment on the basis of a sub-9 GCS caused not by an accident, but by an opiate overdose which then precipitated the accident. To characterize this situation as falling within the guidance of Hodges regarding “confounding factors” is totally misleading, and ignores the specific circumstances of this case. I agree.

In my view, there is no direct evidence that the insurer withheld any information from the applicant or applicant’s counsel. A missing page is unfortunate but not a conspiracy to prevent the applicant from receiving any benefits.

In my view, serving surveillance late is distasteful and inappropriate and is an action that should not occur, however, I am unconvinced that “hard ball” negotiations or litigation is necessarily grounds for a special award.

In my view the insurer is able to hire anyone they wish to conduct medical reviews for a post 104 week IRB or for any other specified benefits, at their own peril. This is not grounds for a special award.

In my view, an adjuster forgetting to send forms to an insured is an error and should not happen however, I am unconvinced that the correct remedy of this error rates a special award in this case.

Therefore, for the reasons above, the insurer is not liable to pay a special award.

Is Mr. Mitchell entitled to interest for the overdue payment of benefits?

I find the applicant, in regards to the income replacement benefits, is entitled to interest for any overdue amounts, in accordance with theSchedule.

EXPENSES:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an expense hearing before me in accordance with the provisions of the Dispute Resolution Practice Code.

Charles Matheson

Arbitrator

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