Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 284
FSCO A15-001519
BETWEEN:
MATTHEW MITCHELL
Applicant
and
COMMONWELL MUTUAL INSURANCE GROUP
Insurer
REASONS FOR DECISION
Before: Arbitrator Charles Matheson
Heard: In person at Toronto on June 20-28, 2017 and July 18, 2017
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, through his representative, 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. Mitchell entitled to interest for the overdue payment of benefits?
Is Commonwell liable to pay Mr. Mitchell’s expenses in respect of the Arbitration?
Is Mr. Mitchell liable to pay Commonwell’s expenses in respect of the Arbitration?
Result:
Mr. Mitchell sustained a catastrophic impairment as a result of the May 17, 2013 accident.
Mr. Mitchell is entitled to income replacement benefits in the amount of $400.00 per week as a result of the May 17, 2013 accident, commencing from October 2, 2015 to date and on-going.
Mr. Mitchell is able to receive attendant care benefits commencing from the release of this award, and a new Form 1 shall be submitted by the Applicant to the Insurer no later than 30 days from this award’s release, or as soon as it can be reasonably arranged.
Commonwell is not liable to pay a special award.
Mr. Mitchell is entitled to interest for any overdue amounts, in accordance with theSchedule with respect to income replacement benefits only.
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 Rules 75 to 79 of the Dispute Resolution Practice Code.
Preliminary Issue
The Applicant raised a preliminary issue regarding the fact that the Insurer was going to submit video surveillance which was taken within the last 30 days prior to this arbitration and served it upon the Applicant’s lawyer less than 24 hours prior to the commencement of this arbitration. The Applicant submits that this late service is contrary to the Dispute Resolution Practice Code (“Code”), Rule 40.1 and submits that this evidence not be admitted as part of the Insurer’s submissions. Further, the Applicant submits that the report that accompanies the surveillance is an unsigned draft copy and the video is an edited version of the surveillance, not the raw material that is required to be served upon the Applicant. The Applicant submits that the Code is written to prevent ambush at arbitration which would happen if this “highly prejudicial evidence” is allowed. The wording of the Code in Rules 39 and 40(1) is mandatory in nature as the Code uses phrases such as “the parties must be served” and “the party shall provide”.
The Insurer submits that the surveillance is directly relevant to the issue within this arbitration, namely the post-104 weekly income replacement benefit. The Insurer argues that both Rule 39 and 40 of the Code can be read together and that the surveillance and its accompanying report are subject to Rule 39(2) which allows for extraordinary circumstances in which a party may seek an arbitrator’s permission to serve a report on the other party for use in an arbitration less than 30 days before the first day of the arbitration.
The Insurer submits that the extraordinary circumstance in this case is that the surveillance was not completed earlier because it was commenced at such a late date. The Insurer also relies on Rule 81 of the Code. The Insurer suggests that I have the discretion in Rule 81(1)(a) or 81(2) to set aside any time limits set out in the Code’s Rules or that any Rule does not apply in respect to this proceedings.
The Insurer argued that an adjournment would be an appropriate remedy for the parties to be able to address the issues surrounding the surveillance itself and the accompanying report.
Both parties provided case law that supported their respective positions, however, the cases referred to do not address the issue that the surveillance video is edited and that the accompanying report is an unsigned draft report and not a fully completed and signed report.
I disagree with the Insurer that Rule 39(2) can allow the surveillance report to be submitted as evidence at this hearing. Rule 40 is a stand-alone rule as it is specific to surveillance evidence and “reports, notes and summaries of surveillance observations or investigations”. As such, an extraordinary circumstances exception does not apply in this case. I am not persuaded to exercise my discretion in this matter and allow the surveillance or the accompanying report to be admitted into evidence in this arbitration. I do not view a late start to the surveillance, in and of itself, to be an extraordinary circumstance under Rule 39(2) in any event. Further, I agree with the Applicant that an adjournment would only allow the Insurer an added opportunity to get the report and surveillance right the second time and circumvent the Code’s meaning and intent. Therefore for the above reasons I will not allow the surveillance and the accompanying report to be entered as evidence at this arbitration.
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 has a Grade 11 education.
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 has been participating in a methadone program shortly after the accident.
Evidence and Analysis
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. Alternatively, 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 sections of the Schedule read as follows:
- (2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is,
(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’s theory of the accident is that the Applicant had a low GCS score prior to the accident. The Insurer argues that the Applicant passed out (or was unconscious) moments prior to the accident - or in other words he passed out and then lost control of the vehicle, and then the accident occurred. The Insurer argues that the low GCS score was caused by a combination of the Applicant’s drug overdose and high blood sugar count of 32 millimoles per litre, and not because of any brain injury that may have been incurred as a result of the accident. This argument would nullify the fact that the Applicant had a GCS score of 9 or less at the scene of the accident.
The undisputed facts of the case as argued and relied upon by both parties are as follows:
For approximately six months prior to the accident the Applicant had been prescribed 60 milligrams (mg) of OxyNEO per day by his family doctor,
The Applicant was taking two 30 mg pills daily – one in the morning and another during the afternoon, in order to relieve his back pain while working,
The Applicant began self-medicating sometime in 2013 with an additional 40 mg of OxyNEO taken at night to help him sleep,
On the day of the accident, the Applicant had dropped off his daughter at his parents’ 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 kilometres from the Applicant’s parents’ driveway,
Witnesses to 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 indicated GCS score of 9 out of 15 at 20:44,
The Applicant was administered a Narcan drip, where some 13 minutes later he began to respond with higher GCS scores as high as 14 out of 15,
The Applicant was transported to the Belleville Hospital, where among other things, his neck was found to be broken,
The Applicant was then transported to the Kingston hospital,
Ambulance Call Report #2 indicated GCS scores of 3 out of 15 at 22:47, 23:00, 23:15, 23:23,
Scan (CT): subarachnoid hemorrhage posterior left temporal lobe and small focal anterior right parafalcine subdural hematoma,
MRI taken on May 21, 2013 (four days after the accident) confirmed the findings of the CT but also noted cortical swelling involving the left lateral orbital gyrus in keeping with the contusion injury. The susceptibility weighted sequence demonstrated 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 levels were 32 millimoles per litre,
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,
By May 22, 2013, the Applicant had been placed in a hard collar and was extubated.
Mr. Matthew Mitchell’s Testimony on the GCS issue:
The Applicant testified that he had no memory of the accident nor the interaction between himself, the different first responders and hospital doctors until several days after the accident when he was brought out of his induced coma.
The Applicant admitted that he had abused substances throughout his life. The Applicant admitted to self-medicating with an additional 40 mg tablet of OxyNEO daily after his family doctor refused to further increase his dosage of OxyNEO. The additional dosage was to help him sleep throughout the night and was taken at night before he went to bed.
The Applicant testified that since the accident, he is forgetful and misplaces things. He forgets to eat and in turn forgets to take his insulin three times per day. He forgets complete conversations with people, which he finds quite annoying. He forgets that he has made appointments and sometimes does not complete all the needed housekeeping tasks (washing dishes, cleaning the bathroom, cleaning and taking out the garbage) as he finds them over whelming and on some days too physically demanding.
The Applicant complains of headaches several times a week. The Applicant testified that he reported to his assessors that he continues to have neck and shoulder pain with intermittent tingling in his arms, but does not suffer from pain or numbness in his legs.
The Applicant testified that he still suffers from depression. The depression is so severe that he does not leave his bedroom for any length of time for days. He has admitted to staying in the same clothes for days, when depressed. He also said that when he is depressed he does not feel hungry.
Mr. Beven Mitchell’s (Applicant’s father) Testimony on the GCS issue:
Mr. Mitchell testified that he had a conversation with his son for several minutes in his driveway prior to the accident. He testified that his son did not appear to be under the influence of any substances and that if he had detected that he was under the influence he would have prevented him from driving a vehicle.
Dr. Harold Becker’s Testimony on the GCS issue:
Dr. H. Becker, the Medical Director of Omega Medical Associates, testified. He evidenced Dr. Lisa Becker’s Report dated August 25, 2014, which indicated that GCS scores recorded at the scene of the accident were initially 9 out of 15 and increased to 14 out of 15 within 13 minutes in spite of high glucose levels and reported opioid medications. Dr. H. Becker testified to the effect that the Applicant’s reduced level of consciousness and lowered GCS scores were proof in and of themselves of a brain impairment. He opined that the initial GCS score points to the effects of a traumatic brain injury.
Dr. H. Becker continued his documentation review of the two ambulance attendant reports and the various reports of the two hospital doctor’s records. He testified the Bellville Hospital’s drug tests did not show any opioids in the Applicant’s blood, and the Kingston Hospital’s drug tests showed cannabis, only, in the Applicant’s system. He noted that there was not a urine analysis test done at either hospital.
Dr. H. Becker suggested that the second ambulance transfer reports showed that the GCS test results indicated at least 3 GCS scores of 3 out of 15 were reported and he confirmed that the records show that there was no sedation or intubation at this time. He concluded from these reports that the Applicant was simply unconscious.
Further, Dr. H. Becker suggested that the first ambulance attendant’s records of a GCS score of 9 out of 15 at the scene of the accident was wrong. He opined that this score should have been recorded as an 8, as he carefully walked through his scoring interpretations of the ambulance attendants’ records of all the GCS score results.
In regards to the Narcan drip applied to the Applicant by the first responders, Dr. H. Becker opined that Narcan is a nerve inhibitor that prevents the nerves in the brain from interacting with opiates; however, Narcan does not flush out or neutralize opioids in the body. Dr. H. Becker further opined that Narcan would not affect a blood or urine screening test for opioids.
When asked further on what the GCS scores mean to a lay person, Dr. H. Becker opined that the Applicant would have needed 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 have happened within the time it took to drive 7 km. The doctor was unable to explain the rapid descent in score, if it actually happened.
On cross-examination Dr. H. Becker was also unable to explain the rapid ascent to a GCS score of 15 out of 15 upon arrival at the Kingston hospital, while the Applicant had previously exhibited consecutive GCS scores of 3 over a two-hour trip, while Narcan continued to be administered.
Dr. Garry Moddel’s Testimony on the GCS issue:
Dr. Garry Moddel, the Insurer’s Neurologist, evidenced his report dated January 29, 2015. Dr. Moddel reiterated his findings in his paper review, which is part of the Canadian Rehabilitation Institute’s response to the Applicant’s OCF-19 Determination of Catastrophic Impairment application.
The doctor repeated his findings in his report that the Applicant originally lost consciousness as a result of other factors and not as a result of a brain impairment sustained in the accident. He stated that Mr. Mitchell’s original loss of consciousness was related to his drug overdose. The Applicant was also found to be hyperglycemic which may also account for his decreased level of consciousness. In the doctor’s opinion, the minor closed head injury that the Applicant suffered would not account for his significant decreased level of consciousness and his immediate improvement once he was given Narcan. The doctor also opined that the GCS score of 9 out of 15 was, in part, related to drugs and hyperglycemia and he did not find that this was related to the minor closed head injury. On page 6 of his January 29, 2015 paper review report the doctor wrote to the Insurer in response to the question, “Would the GCS score have decreased to 9 or less because of a brain impairment sustained in the accident?”
Answer: “From the description of his closed head injury, it would be unlikely that this would have caused his Glasgow Coma Scale to be 9/15. As well, as I mentioned he had pinpoint pupils which is related to a narcotic overdose. Hence, I do not feel that his Glasgow Coma Scale of 9/15 reflects his traumatic brain impairment.”
The thrust of Dr. Moddel’s examination-in-chief was that the GCS score of 9 out of 15taken at the scene of the accident was based upon metabolic issues and opiates and not a structural brain issue. He opined that the Applicant would not significantly improve over a short period of time if the impairment was not caused by overdose and was caused by a structural brain issue. The doctor admitted that there was no direct evidence of opioids in the Applicant’s system, however, he came to his conclusion because of the Applicant’s reaction to the introduction of the Narcan. The doctor agreed that there was no measurable amount of opioids in the Applicant’s system or in his brain at either hospital.
However, when pressed on cross-examination, Dr. Moddel admitted that some measure of the Applicant’s Traumatic Brain Injury caused his reduced level of consciousness. Dr. Moddel also agreed that the creators of the GCS (Jennett and Teasdale) considered confounding factors like diabetes and drug use when designing the GCS system. Further, Dr. Moddel agreed that there was no evidence that the Applicant was sedated or intubated at the time that any of the GCS scores of 3 were taken, and that there was no evidence that any of the scores were invalid or not taken within a reasonable time after the accident, by a person who was qualified to do so. The doctor, however, testified he simply has not seen any person with a GCS score of 3 who was not brain dead, so therefore, the readings of 3 must be incorrect. The doctor admitted to not being in the ambulance at the time the GCS scores were taken, nor did he offer any other GCS scores as an alternative. The doctor suggested that the high blood sugars would have inhibited the metabolization of the opioids.
Finally, Dr. Moddel testified that he could tell if a person had a brain injury just by looking at them, but admittedly he did not see the Applicant before writing his paper review.
Dr. K. Zakzanis’ Testimony on the GCS issue:
Dr. Konstantine K. Zakzanis authored the Insurer’s Catastrophic Neurocognitive-Behavioural Report dated March 23, 2017. Dr. Zakzanis reiterated his findings in his report, which is part of the Canadian Rehabilitation Institute’s response to the Applicant’s OCF-19 Determination of Catastrophic Impairment application. Although the majority of the doctor’s testimony was on the subject of the Applicant’s level of impairment within the four spheres, the doctor opined that the Applicant was moderately impaired in all the spheres, except for the fourth sphere, Adaptation, which was mildly impaired. The doctor under cross-examination, agreed that all the indicators of a severe brain injury were present. Finally, during cross-examination the doctor stated that “but for the accident, the circumstances of the Applicant would not be as they are today”.
Dr. David Kurzman’s Testimony on the GCS issue:
Dr. Kurzman testified as the principle of David Kurzman Psychological Professional Corporation, who testified on behalf of the Applicant. Dr. Kurzman brought into evidence the two neuropsychological assessment reports of November 15, 2014 and March 11, 2016, which he co-authored with Dr. Tobi Lubinsky. Although the majority of the doctors’ testimony revolved around the post-104 weekly income replacement benefits, and the marked impairment issue, some evidence can be useful in the GCS issue context. In both reports, exhibits 20 and 21, the doctors opine that the Applicant sustained a Traumatic Brain Injury during the course of the accident of May 17, 2013, which they characterized as moderate in severity. Within the November 15, 2014 report on page 36 under the heading of “Conclusions and Opinion” they stated:
At this time, Mr. Mitchell’s neurocognitive profile is primarily notable for difficulties with attention. He demonstrated difficulty adapting to changes in task demands with reduced performances seen as a function of increased task complexity, a susceptibility to interference, and reduced visual attention to detail.
Conclusion:
I was provided with no direct evidence that the Applicant fell asleep, passed out or was unconscious prior to the accident. There is no direct evidence that the Applicant’s GCS score prior to the accident was as low as 9 or for that matter 11 or less. The Insurer simply suggested that the Applicant had a lower GCS score without providing any alternative numbers or logic for said alternatives. Dr. H. Becker testified that a GCS score of 11 or less would render the Applicant unable to drive, but no medical explanation for a sudden drop in the Applicant’s GCS scores has been given considering the Applicant was speaking to his father for several minutes just prior to the accident.
These theories are speculation at best. There is no evidence as to what amount of recreational drugs were missing from the bottle (if any) or if the Applicant self-medicated with extra OxyNEO earlier than his 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, that he must have been unconscious prior to the accident. I remain unconvinced that the Narcan would have acted differently with the prescribed amount of 60 mg of OxyNEO versus the 100 mg the Insurer suggests were in his body at the time of the accident.
Based on the hospital and first responder’s records, the hospital staff and first responders had no idea that the Applicant had been prescribed 60 mg per day of OxyNEO from his family doctor. The hospital records noted an overdose of opioids. These 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 taking into consideration the level of OxyNEO (60 mg at a minimum) that was in the Applicant’s system, coupled with the fact that Narcan is supposed to neutralize the effects of opioids on the brain. The Insurer and its experts were unable to explain the different GCS scores of 3 during the second ambulance transfer to the Kingston Hospital, other than a suggestion that these readings are wrong as they did not match the nurse’s notes taken during the transfer. I note that there is no direct evidence that these notes were taken contemporaneously or who made these hand written notes.
None of the first responders or the emergency room hospital staff gave evidence at this Arbitration. The training of the first responders 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 what effects high blood sugar levels had on the Applicant and how those effects dovetail or overlap with the opioid cocktail the Insurer theorizes on. Dr. Moddel suggested under examination that the low GCS score of 9 was due to a drug overdose along with high blood sugars, but then he testified that the high blood sugars would have inhibited the metabolization of the opioids. The Insurer’s experts did not explain why a functioning addict / diabetic with no history of losing consciousness would suddenly do so. The Insurer’s medical experts did not address or explain the theory of how in an extremely short period of time, in these circumstances, the Applicant would pass out so quickly. Dr. Moddel did not explain the multiple GCS scores of 3 which occurred over a two-hour ambulance transfer from the Bellville hospital to the Kingston hospital while the Narcan drip continued.
I remain unconvinced that the Insurer’s theory is correct, as the Applicant has admitted to taking 100 mg per day of OxyNEO for months prior to the accident and did not report at any time prior to the accident that was he was ever found to be unconscious, in distress, confused, or lost.
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 (Traumatic Brain 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 from the closed head injury are clear and apparent in his speech and word recall patterns, as I witnessed same while the Applicant was testifying.
The Applicant relies on the following legal precedents to support his case:
In Security National v. Hodges, 2014 ONSC 3627, the Divisional Court stated 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. (my emphasis)
In Liu et al. v. 1226071 Ontario Inc. (Canadian Zhorong Trading LTD.), 2009 ONCA 571, the Court of Appeal stated starting at paragraph 27 and concluding at paragraph 30, with my underlined added emphasis:
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.
In my view, it is clear from these rulings above, which are binding on this Commission, that an Applicant who suffers from any brain injury causing any brain impairment, and acquired one GCS score of 9 or less, as a direct result of the accident, has satisfied the legal test and is to be considered catastrophically impaired as per the Schedule. In my view, the Insurer has not satisfied me that, in this case, the GCS scores of 9 or less were not a direct result of the accident.
Therefore, for the above reasons I find that the Applicant sustained a brain impairment as a result of the May 17, 2013 accident, and acquired one 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.
In regards to the marked impairment issue, the parties have made significant submissions, which had a substantial impact on my understanding of the Applicant’s condition as a result of the accident. I have taken the parties’ submissions into consideration in all aspects of this Arbitration. In the alternative, I prefer the evidence of the Applicant over that of the Insurer, in that I am convinced that the Applicant would have been found catastrophic as a result of being found to have a marked impairment within the deterioration or decompensation in work or work-like settings sphere. In my view Dr. Kurzman’s methodology of weighing the objective and subjective evidence and placing said weight in the respective spheres is more in line with the American Medical Guides to the Evaluation of Permanent Impairment Fourth Edition’s traditional approach than those methodologies employed by Dr. Zakzanis, who also opined on the Applicant’s impairment levels within the four spheres. However, any subsequent findings on the marked impairment issue are irrelevant as the result of the above GCS issue is separate and independent from the marked impairment issue. To satisfy one of the two different criterion is sufficient in itself to establish a catastrophic impairment as per the Schedule. As such I do not find it necessary to comment further 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 post-104 week income replacement benefits is s. 6, which reads as follows:
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 Applicant’s burden 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 the post-104 week income replacement benefit (“IRB”). 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 post-104 week IRBs. These assessments and their respective Addendum Reports were completed from June to December 2015. The multidisciplinary assessments were conducted by Dr. Gharsaa, Orthopedic Surgeon, Dr. Moddel, Neurologist, Dr. Jeffrey Karp, Psychologist and Psycho-vocational expert, and John Haratzis, Physiotherapist who conducted a functional abilities evaluation. They concluded that the Applicant did not meet the test for entitlement to post-104 week IRBs, despite the acknowledgement of his mental health issues, in that the experts agree that the Applicant suffers from Adjustment Disorder with Depressed Mood and that further psychotherapeutic intervention is warranted.
Mr. Matthew Mitchell’s Testimony on the IRB issue:
The Applicant testified he has not worked since the accident. He complains of not being able to sleep at night, the loss of appetite, memory issues, along with continued pain in his neck, shoulders and back. The Applicant admitted to smoking marijuana to help ease his neck and back pain. The Applicant testified that he has tried to return to work on several occasions, just weeks prior to this Arbitration, which were not successful, in his view, as he had to take extended rest periods including naps in the afternoon. The Applicant testified that he did not have a driver’s licence since the accident, and required someone to pick him up from his house and then drive him back from the worksite at the end of the day. On both attempts the Applicant said that he was picked up by friends whom he was helping at the respective job sites. In regards to the different jobs that he was trying to perform the Applicant stated that he was doing light clean-up work at the sites along with washing, sorting and organizing hand tools. The Applicant testified that he tried to help his father split fire wood on several occasions. These attempts were failures, in his view, as he was unable to continue to help his father for a second day as his pain prohibited him from continuing.
The Applicant believes that he has a learning disability in regards to learning math and English, but was unable to expand on what his disabilities were.
To further complicate these attempts at returning to work he testified that he experienced significant pain after his attempts, which in turn caused him to fall behind in his daily house maintenance chores which caused him to have another bout of depression.
Dr. Moddel’s Testimony on the IRB issue:
The doctor introduced his Neurological Insurer’s examination dated July 31, 2015 in which he reiterated the findings of his report. The doctor confirmed the Applicant complained of pain in his neck and back, along with his forgetfulness and speech/word recall issues. The doctor reviewed all other medical reports and assessments completed since the accident which confirmed the Applicant’s complaints such as depression. The doctor testified that the tests he performed on the Applicant were to determine whether or not there are any abnormalities in the nervous system and then to determine what is the cause of the abnormalities, if any. The doctor reiterated his findings and concluded within his report that the Applicant has average or above average results from his testing. This brought the doctor to the conclusion that the Applicant, from a neurological point of view, does not suffer a complete inability to engage in any employment for which he is suited by education, training or experience.
Mr. Beven Mitchell’s (Applicant’s father) Testimony on the IRB issue:
Mr. Mitchell testified that when he visits his son’s home, after the accident, he finds it in disarray. He explained that it was not unusual to see days’ worth of dishes stacked up in the sink, cigarette burns on the floor and on the furniture. There were months’ worth of garbage stacked on the back deck of the house including a freezer whose lid was closed during the summer months, also full of garbage. Mr. Mitchell testified that it took several truck loads to remove the garbage from the house to the dump.
Mr. Mitchell testified that his son is good natured person who really likes to help people when he can. He was a good worker, with amazing skillsets as a drywaller - “a real artist” - prior to the accident. He painfully admitted that after the accident his son was too forgetful to be employed. He stated that his son would forget he had a job to do and would not show up. If he did remember he would be late upon arrival, and unable to focus on the job at hand in order to complete it. Mr. Mitchell testified that his son had no memory or forgetfulness issues prior to the accident. Mr. Mitchell also confirmed that his son tried to help him split fire wood but did not or could not continue for a second day.
Mr. Mitchell testified that he witnessed his son’s confusion and anger at the Kingston hospital, his son being fitted with a hard collar and then sedated where he stayed in the hospital for 2 or 3 weeks. He was then released to Mr. Mitchell and his wife, for recovery.
Dr. Zakzanis’ Testimony on the IRB issue:
Although the doctor’s testimony mainly revolved around the catastrophic impairment ratings of the Applicant within the four spheres (Activities in Daily Living, Social Functioning, Concentration, Persistence and Pace, and Deterioration or Decompensation in work or work-like settings), where he found that the Applicant did not have any marked impairments, in cross-examination the doctor did touch on some important issues that overlap the post-104 IRB tests. The doctor stated and confirmed that the Applicant was prone to lying in bed for days while crying in a depressed state, suffered from memory issues and took a long time to complete the test tasks placed before him, if the tasks were actually completed. The conversation at this point within the cross-examination was an argument between counsel and the doctor about “useful functioning” versus “efficiency of functioning”. Dr. Zakzanis agreed that time taken for the completion of a task is not something he takes into consideration for this type of report, and added that there was no inference of efficiency in his results.
Dr. Zakzanis, in his role as an expert in Psychology, has also completed a large number of post-104 IRB examinations on patients and testified that a person who has sustained the type of injuries that the Applicant has endured should be examined by the gold standard of a Neuropsychologist. The doctor agreed, during cross-examination, that this would have been the best option.
Dr. Kurzman’s Testimony on the IRB issue:
Dr. Kurzman testified that he was a Psychologist who practices in Neuropsychology. Dr. Kurzman testified on behalf of the Applicant. The doctor evidenced his Neuropsychological Evaluation report dated November 15, 2014, as well as a second report dated March, 11, 2016. The IRB issue is addressed fully in the second evaluation report. The doctor suggests in his first report that the Applicant suffered a diffuse traumatic brain injury and as a result his working memory (doing such tasks as mental math) was below average. The doctor noted that the Applicant’s performances increasingly got slower the harder or the more complex the task became. The doctor recorded that the Applicant complained of cognitive issues and high levels of anxiety and pain. The doctor opined that the Applicant sustained a traumatic brain injury because of the altered state of consciousness at the accident site, which in his opinion explains why the Applicant complains of both retrograde and post-traumatic amnesia. The doctor stressed in his testimony that pain (such as the Applicant experiences) does affect cognition and retention of information and memory. The doctor was hopeful that at some time in the future the Applicant would be able to return to employment but it would be a protracted recovery time, if treatment with a psychologist and an occupational therapist was provided.
In the second report the doctor maintained and reiterated his findings in his report found on page 37 and 38 which read as follows:
Given Mr. Mitchell’s accident –related difficulties with complex attention superimposed on a pre-accident history of learning difficulties, coupled with the low likelihood of securing alternative employment in his field, it seems unlikely that Mr. Mitchell will successfully return to the workplace. Were he to attempt to return to work in one of the occupations listed by the Insurer (Dr. Karp) we would predict that he would have difficulty advancing his career and working for the long term. Taken together, it is our opinion that Mr. Mitchell has sustained a complete inability to return to his former vocation or for that matter, to any occupation for which he is suited by education, training, or experience. He has undoubtedly suffered a competitive disadvantage as a result of this accident. It is our opinion that Mr. Mitchell sustained significant accident related injuries that have resulted in a permanent and serious impairment of an important physical, mental and/or psychological function.
It appears more likely that Mr. Mitchell will require academic upgrading and /or job retraining in order to secure employment in a different field than the type of work he was doing prior to the accident. Dr. Karp recognized this in his report and stated, “Mr. Mitchell would benefit from upgrading and remedial support to address his memory weaknesses and attentional difficulties in preparation for on-the-job retraining of short –term practical college-level retraining”. However it is our opinion that were Mr. Mitchell to undergo academic upgrading and/or job retraining,…. he would require significant academic accommodations, to increase his chance of success and ultimately to maintain gainful employment in the future.
Dr. Karp’s Testimony of the IRB issue:
Dr. Karp is a clinical Psychologist who also has a competency in vocational rehabilitation. Dr. Karp introduced into evidence his four assessments.
The four reports are 1) Psychological Examination dated July 31, 2015, 2) Transferable Skills Analysis dated July 31, 2015, 3) Labour Market Survey dated July 31, 2015 and 4) Psycho-vocational Examination Report dated July 31, 2015.
Dr. Karp testified that he relied on and was influenced heavily by the Functional Abilities Evaluation completed by John Haratsis, a registered Physiotherapist, dated July 31, 2015. Mr. Haratsis determined that the Applicant’s physical functioning falls within the medium to heavy physical demands occupations. The doctor testified that the Applicant had reported to him that he had suicidal ideations along with irritability and sleep issues and suffers pain in his neck and back. Dr. Karp testified that the Transferable Skills Analysis report was based on self-reported information from the Applicant, where he acknowledges that the Applicant failed to identify any significant transferable skills. Cognitive functioning tests were completed which reflected an average score for these tests, meaning training for a low skill vocation would be adequate for the Applicant.
Dr. Karp reiterated his findings of his Psycho-vocational examination report dated July 31, 2015 and noted on page 25 at paragraph 6 that “Overall, Mr. Mitchell’s vocational prognosis is considered poor to fair and vocational rehabilitation is warranted”.
Dr. Karp reiterated and defended his Transferable Skills Analysis report dated July 31, 2015 where he compiled a list of vocation options for the Applicant who, in the doctor’s opinion, would not require any more than 30 days of employer based retraining. This list reads as follows:
Parking Lot Attendant
Service Station Attendant
Fork Lift Operator
Exterminator
Parking Enforcement Officer
By Law Enforcement Officer
Liquor License Inspector
Orderly
Customer Service Representative – Call Center
Dr. Karp testified that the labour market survey he conducted provided him with the above list, however, this list was not exhaustive. He testified that he identified the above list by using Employment Canada’s website which encompassed the Bellville area within the Kingston to Pembroke geographical area.
The Applicant’s uncontested submissions on 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 his 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 marked impairments in both spheres of (1) concentration, persistence and pace and (2) deterioration or decompensation in work or work-like settings.
In respect of the second part of the test, the Applicant argues that none of the jobs which the Insurer has identified via Dr. Karp’s Transferable Skills Analysis report are suitable. The Applicant argued that while Dr. Karp’s listed vocations may meet the remuneration and prestige requirements they all fail on the proximity and availability requirement. None of the vocations 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 driver’s licence, could hardly be said to be proximate. Furthermore, Dr. Karp himself acknowledged under cross-examination that only one of the jobs he selected had any prospect of availability, which is that of 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 Applicant submits that the Insurer has failed to discharge its burden in this context.
In respect of the third stage of the test, the Applicant relied on the opinions of Dr. Kurzman and Ms. Kudela who were both 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, their respective notes and records have supported the Applicant in his efforts to qualify for the Ontario Disability Support Program.
Mr. Jeffery Ford’s testimony on the IRB issue:
Mr. Ford brought into evidence his five Occupational Therapist’s reports dated September 15, 2014, October 17, 2014, February 11, 2015, July 7, 2015, and finally August 17, 2015. Mr. Ford reiterated the findings within each report, but focused more on his last report. I found his testimony on the attendant care issue useful within the IRB issue context as Mr. Ford concentrates on the Applicant’s physical limitations, or abilities only. Mr. Ford testified that the Applicant had no physical limitations in that he could sit, stand, walk and bend without any limitations. Mr. Ford’s reports and testimony briefly acknowledges the Applicant’s speech, cognitive deficits and chronic pain only in passing while reciting past doctors’ findings. Mr. Ford acknowledged that the Applicant self-reported that the chronic back pain experienced by the Applicant was a different pain and in a different location on the back after the accident. Mr. Ford dismisses these deficits and in particular dismisses the Applicant’s memory issues as he now has memory assistive devices; he does not explain what happens when the Applicant forgets to list the future event in his assistive device. I note that Mr. Ford continuously noted and relied on his and Dr. Kurzman’s findings that the Applicant scored low-average in visuospatial/construction in the Repeatable Battery for the Assessment of Neuropsychological Status (“RBANS”) cognitive screening, on January 27, 2015. I also note RBANS is a brief, individually administered test designed to evaluate the neuropsychological status of adults, ages 20-89. The 12 subtests measure attention, language, visuospatial/constructional abilities, and immediate and delayed memory.
Mr. Ford opined, on page 34 in paragraph 3 of his August 17, 2015 report, while answering the Insurer’s question #1 “Does Mr. Mitchell currently suffer from an impairment as a direct result of the motor vehicle accident for which he requires attendant care?” Answer: “No. At the present time, the applicant does not demonstrate a physical, cognitive or emotional limitation, clearly documented and directly attributable to the subject MVA from a subjective and objective perspective that would require attendant care.” Mr. Ford testified that the Applicant had no physical, cognitive or emotional limitations, as the Applicant was self-reportedly cleaning his home now.
Mr. John Haratsis, a Physiotherapist, authored a Functional Abilities report dated July 31, 2015 (Exhibit 45) and on page 10 at paragraph 3 made the following findings:
Workday Tolerance
Mr. Mitchell demonstrates a workday tolerance of 8 hours per day. This workday tolerance may consist of up to:
8 hours sitting, no apparent limitations – regular breaks
4-5 hours standing, in 25 minute durations
6-7 hours walking, frequently over moderate distances
On page 11, paragraph 4 of this report Mr. Haratsis concludes. “His participation was classified to be a valid representation of his current functional abilities. This qualifies the examinee’s results as a true representation of his safe functional abilities. Based on the results of the above assessment and from a functional point of view, he was found to be able to currently function at a medium to heavy physical demands level on a full time basis.”
Conclusion
Mr. Ford’s reports and testimony indicate that the Applicant can, on any one day, do the physical requirements of daily living activities. Mr. Haratsis’ report picks up on this pattern, as I note that the first three of Mr. Ford’s reports were read and considered during the writing of his report. I also note that Mr. Haratsis does not do any veracity checking in regards to the Applicant’s occupational status and activities of daily living. Mr. Haratsis simply relied solely on the Applicant’s self-reporting. I also note that Mr. Haratsis does not do any cognitive testing. I also note that Mr. Haratsis does not do physical testing on consecutive days, thus all of his results are based on a single day’s test results.
I agree with the Insurer’s assessors and I am convinced that the Applicant could perform certain duties of a forklift operator or a telemarketer or call centre attendant for a day.
But in my view, the Insurer’s reliance and focus on the Applicant’s physical limitations and self-reported transferrable skillsets, without collaboration, are fatal to its position. 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 meet the expectations of a reasonable employer, even if they were available within a reasonable distance from his home, which they were not.
The numerous assessments by both the Insurer and the Applicant show that the Applicant has memory, word recall and speech impairments of various degrees, which make his speech slower than average, which, in my view, would be fatal to his being hired for a telemarketer or call centre attendant even if they were available.
In regards to a forklift operator’s vocation, this vocation has an extremely wide job description which was not defined by the Insurer. A forklift operator’s functions are related to hand and eye coordination and memory recall, as to where the product is stored, where the loaded product fits into the truck and at which loading bay the truck is located. It is unclear how heavy and bulky the products that the forklift is transporting are or how high the pallets are stacked. All of the duties of a forklift operator are time-sensitive. Again, quality and quantity are bona fide job requirements that must be met regularly, not just once or twice, but 50-100 times a day. In my view, the assessors failed to take these issues into consideration when compiling the vocational lists above.
I agree with the Applicant that the vocations that require him to be in charge of or manage restricted substances such as alcohol or pharmaceuticals are inappropriate. In my view, the Insurer’s assessors errored when they jointly failed to take into account the Applicant’s cognitive/ memory and speech deficits over the term of a work week and the effects a work week would place on his physical and mental well-being. The Applicant has shown over time, even when he remembers all of his duties and chores, that when he is overwhelmed by his chronic neck/back pain he sinks into a depression, where he stays for days. Absenteeism would be problematic for any employer.
In my view, the Insurer also overlooked that the Applicant is currently enrolled in a Methadone program where he takes 120 mg of Methadone daily. There was no evidence before me that any employer contained in Dr. Karp’s list would allow any employee to enter and work on their premises under this condition, either from a health and safety perspective or a WSIB perspective. There is no evidence as to for how long the Applicant will be in this program.
For these reasons I find that the Applicant is completely unable to engage in any employment for which he is reasonably suited by education, training, or experience and therefore is entitled to IRBs 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:
Duration of medical, rehabilitation and attendant care benefits
20 (2) Subject to subsection (3), no attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.
(3) The time limits set out in subsections (1) and (2) do not apply in respect of an insured person,
(a) who sustains a catastrophic impairment as a result of the accident; or
(b) who is entitled to the optional medical, rehabilitation and attendant care benefit under paragraph 5 of subsection 28 (1).
The Insurer argues first and foremost that there are no incurred attendant care benefits currently in dispute in this Arbitration. As such, the Insurer submitted that this issue was not properly before the Commission. In regards to retroactivity of this benefit, the Applicant concedes that there were no incurred attendant care expenses since the termination of the benefit at the 104-week mark as the Applicant has been on social assistance since the accident. Therefore, I agree with the Insurer that any retroactive benefits for the period pre-dating the release of this award is inappropriate and outside of my jurisdiction to order.
The Insurer argues that attendant care benefits are not reasonable or necessary in any event. The Insurer relies upon Mr. Ford’s testimony and his various reports, which suggest that attendant care is not required.
Mr. Ford’s testimony on the Attendant Care issue:
Mr. Ford brought into evidence his five reports dated September 15, 2014, October 17, 2014, February 11, 2015, July 7, 2015, and finally August 17, 2015. Mr. Ford reiterated the findings within each report, but focused more on his last report where he opined that the Applicant had no physical, cognitive or emotional limitations, as the Applicant was self-reportedly cleaning his home now. Mr. Ford testified that the Applicant was now using a variety of assistive devices including a stove guard, to prevent cooking accidents. Mr. Ford testified that the Applicant was able to sustain a full six minutes of concentration on creating a 12-hour schedule of events without any demonstrated limitations, thus he opined that the Applicant’s cognitive functions were within a normal range. Mr. Ford also believes that because the Applicant is capable of using his cell phone, calendars and white board/cork boards as memory cues he is capable of remembering important events on his own without a person cueing him.
On cross-examination of Mr. Ford, he stated that he did not document what any of the Personal Support Workers were doing for the Applicant during the first two years after the accident, and that he made no mention of any observations of the condition of his house after the attendant care benefit was terminated at the 104-week mark, and that his October 17, 2014 report was a paper report only. Mr. Ford testified that he did not actually see the Applicant perform any house-keeping tasks including making meals, exercise, or perform any part of his personal hygiene regimen, and that he also did not note any cognitive deficits suffered as a direct result of the accident, because the Applicant did not comment on these issues. Mr. Ford stated that he did not do a collateral interview of the Applicant’s daughter for his final report and was not told of the Applicant’s two visits to the hospital in the last year as a result of him forgetting to take his insulin, so there was no mention of same in his final report. Mr. Ford maintained his position that attendant care benefits were not required as was noted in his final Form 1 that was submitted on June 18, 2015.
Ms. Kudela’s Testimony on the Attendant Care issue:
The Applicant relies, in part, on Occupational Therapist Ms. Diana Kudela. Ms. Kudela evidenced her five reports which are dated September 30, 2014, April 24, 2015, June 8, 2015, November 13, 2015, and November 8, 2016. Ms. Kudela noted in each of her reports the memory and forgetfulness issues the Applicant was struggling with, including forgetting the stove was on, appointments, and eating and taking his insulin. Ms. Kudela spoke about the recommendations for the occupational therapy for his pain management and job performance anxiety. She made recommendations for speech therapy to help address his cognitive issues and swallowing issues. Further recommendations were for a stove guard, Swiffers, Crock-Pot or slow cooker, which would assist in safe food preparation and clean-up. Other assistive devices such as bath mats, cervical pillows and an electrical shaver were recommended for safety reasons. A white board and a corkboard were recommended for memory prompts. Ms. Kudela reiterated her findings of the personal care the Applicant continued to require throughout her 17 different visits during this period. Ms. Kudela noted in her various house visits and inspections that the house was in disarray and was unclean, once the service provider “Bayshore” had stopped providing attendant care, as the attendant care benefit had been terminated. She defined unclean as meaning stacks of dishes were piled up in the kitchen, piles of garbage were stacked up on the back porch, piles of dirty clothes were in the Applicant’s bedroom, and there was dog hair and cigarette burns everywhere.
In her last interview with the Applicant she noted that the Applicant’s word finding was still prevalent, and in her opinion his memory issues and fatigue were the root cause of his forgetting to eat and take his insulin. She noted that the Applicant is still losing weight. Ms. Kudela made a recommendation at this time for some personal assistance to be provided to the Applicant to assist with food choice and preparation to help maintain healthy blood sugar levels.
The Insurer argued that memory cueing by a personal support worker or others, as recommended by Ms. Kudela’s June 8, 2015 occupational report, was not necessarily an attendant care “need”, and in any event, the amount of cueing recommended by Ms. Kudela’s report is excessive. The Insurer relies on the fact that the Applicant has had the full custody of his now teenage daughter without interruption, prior to the accident and to date. As the primary caregiver of a minor the Insurer argues that he is capable of managing both of their affairs and requires no attendant care.
The Applicant argued 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 he forgets to take his insulin. Further, the Applicant argued that if he is deemed catastrophic, quantum to his entitlement to on-going attendant care should be either reflective of his current attendant care needs, or in accordance with the Form 1 dated May 22, 2015 by Ms. Kudela, which I could order.
The Applicant argued that in Fernandes and Certas Direct Insurance Company, (FSCO Appeal P06-00030, February 14, 2008), 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 submitted that his current needs could be determined by way of a new Form 1 or as per Fernandes, by way of an Order. An arbitrator has the discretion to determine the reasonableness, necessity and or quantum of attendant care needs with or without a Form 1.
The Insurer argued, but without presenting case law on point, the current jurisprudence does not allow an arbitrator to assess and Order the quantum to be received by an applicant, and as such a new Form 1 must be submitted so the process of the attendant care benefit can be properly assessed, incurred and paid out.
Conclusion:
There are two questions that need to be answered; first, is the Applicant able to apply for attendant care benefits? And second, what is the quantum of attendant care that should be awarded, if any?
First, as the Applicant has now been deemed catastrophic, I find that the Applicant is able to claim and receive attendant care benefits commencing from the release of this award, as he has satisfied s. 20(3)(a) of the Schedule.
In regards to the second question, in my view, a Form 1 only identifies the attendant care needs of the Applicant. These listed attendant care needs must also be reasonable and necessary, before the Insurer is required to pay them as per the Schedule, keeping in mind that the Insurer also has the ability to obtain its own Form 1 and pay that amount, until Ordered otherwise. A Form 1 only identifies attendant care needs, and the quantum of those needs; it does not constitute evidence that the expenses have been incurred or that the expenses are reasonable and necessary.
It is my view that in Fernandes, the Arbitrator had to make a line by line assessment of the Applicant’s Form 1 where he was assessing the “reasonableness and necessity” of the services listed within that Form 1. This action was upheld by the Director Delegate’s decision, as the Insurer did not have a competing Form 1 to compare. It was under this very specific set of circumstances that the Director’s Delegate made his findings. The circumstances are different in this case. In this case, I have two outdated competing Form 1s that have two extremely different views of the Applicant’s attendant care needs at that time. There was no evidence or detailed arguments on a line by line examination of either Form 1. I remain unconvinced I have enough information on either Form 1 to make any determination in this regard.
I am also unconvinced that either Form 1 gives an accurate reflection of the Applicant’s attendant care needs under today’s realities.
Therefore, in regards to the second question, I agree with the Insurer, that a new Form 1 must be submitted in order to trigger the proper response process by the Insurer, to determine the quantum for an attendant care benefit.
- Is Commonwell liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mitchell?
The parties agree that former 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 argues that 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 its obligation of good faith to adjust this file in the Insured’s best interest. The Applicant supports this argument by highlighting several points in which the Insurer has acted inappropriately and such actions warranting sanctions which should be considered aggravating factors going beyond the normal withholding of 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,
The Insurer served surveillance of the witness extremely late (served days prior to the hearing, which was excluded during preliminary issue arguments at the beginning of this hearing). The Applicant submitted 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 - the smoking gun which would have undermined its 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 IRB, in spite of the fact that the Applicant’s injuries were primarily a result of a Traumatic Brain Injury, and where its own expert stated that neuropsychology is the gold standard in terms of assessing impairments and brain injuries.
The Insurer argued 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 argued 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 Insurer argued that this case was complex and challenging to adjust. To the Insurer’s knowledge, there was no prior case law considering catastrophic impairment on the basis of a sub-9 GCS caused not by the accident itself, but by an opiate overdose which then precipitated the accident. To characterize this situation as falling within the guidance of Hodges regarding “confounding factors” would be totally misleading, and ignores the specific circumstances of this case.
Conclusion:
There is no direct evidence that the Insurer withheld any information from the Applicant or Applicant’s counsel. A missing page of a hospital report is unfortunate but cannot be construed to be a conspiracy to prevent the Applicant from receiving any benefits. There is no evidence that the missing page was ever included in the hospital report, or that the Insurer knew what was contained on this page.
In my view, serving surveillance extremely late is distasteful and inappropriate and should not occur, however I am unconvinced that “hard ball” negotiations or arbitration tactics are necessarily grounds for a special award.
In my view the Insurer is able to hire anyone it wishes to conduct medical reviews for a post-104-week IRB or for any other specified benefits, at its own peril. This is not grounds for a special award in this case, as the Applicant has not provided me with evidence that the Insurer’s adjuster was devoid of any logic when hiring its assessors.
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 warrants a special award in this case. I have not heard evidence that the purpose of a special award is the same as damages being awarded in litigation.
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,Mr. Mitchell, is entitled to interest for any overdue amounts, in accordance with theSchedule with respect to IRBs only.
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 Rules 75 to 79 of the Dispute Resolution Practice Code.
October 31, 2017
Charles Matheson Arbitrator
Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 284
FSCO A15-001519
BETWEEN:
MATTHEW MITCHELL
Applicant
and
COMMONWELL MUTUAL INSURANCE
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Mr. Mitchell sustained a catastrophic impairment as a result of the May 17, 2013 accident.
Mr. Mitchell is entitled to income replacement benefits in the amount of $400.00 per week as a result of the May 17, 2013 accident, commencing from October 2, 2015 to date and on-going.
Mr. Mitchell is able to receive attendant care benefits commencing from the release of this award, and a new Form 1 shall be submitted by the Applicant to the Insurer no later than 30 days from this award’s release, or as soon as it can be reasonably arranged.
Commonwell is not liable to pay a special award.
Mr. Mitchell is entitled to interest for any overdue amounts, in accordance with theSchedule with respect to income replacement benefits only.
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 Rules 75 to 79 of the Dispute Resolution Practice Code.
October 31, 2017
Charles Matheson Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.