Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 302

FSCO A15-008374

BETWEEN:

BINDU PATEL

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

DECISION

Before:

Arbitrator Marshall Schnapp

Heard:

In person at ADR Chambers on August 1 & 2, 2017 and by written submissions completed on August 17, 2017

Appearances:

Mr. Jono Schneider for Ms. Patel

Ms. Sharla Bandoquillo for Unifund Assurance Company

Issues:

The Applicant, Ms. Bindu Patel (“Ms. Patel” or “the Applicant”), was injured in a motor vehicle accident (“MVA”) on February 17, 2014 and sought accident benefits from Unifund Assurance Company (“Unifund” or “the Insurer”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, 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 Arbitration are:

1. Did Ms. Patel sustain a catastrophic impairment as the result of the motor vehicle accident of February 17, 2014?

2. Is Unifund liable to pay a special award because it unreasonably withheld or delayed the payment of the income replacement benefits, as well as medical and attendant care benefits to Ms. Patel?

3. Is Ms. Patel entitled to interest for the overdue payments of benefits?

4. Is either party entitled to its expenses of the Arbitration?

Result:

1. Ms. Patel sustained a catastrophic impairment as the result of the motor vehicle accident of February 17, 2014.

2. Unifund is liable to pay a special award in the amount of $9,629.70 because it unreasonably withheld or delayed the payment of income replacement benefits to Ms. Patel, plus applicable interest.

3. Unifund is not liable to pay a special award with respect to medical and attendant care benefits.

4. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Witnesses

I heard testimony on behalf of Ms. Patel from herself; Mr. Ashok Patel, the Applicant’s husband; Dr. Dhaliwal, the Applicant’s treating psychiatrist who completed her Catastrophic Assessment; and Dr. Seiden, a general practitioner who specializes in catastrophic (“CAT”) impairment assessments and who completed a report on behalf of the Insurer. It should be noted that Dr. Seiden did not complete a CAT assessment report.

The Accident

The MVA took place on February 17, 2014, when the Applicant was driving to work. Her vehicle was at a complete stop when it was hit from behind and caused her vehicle to hit the vehicle in front of her, and the Applicant’s vehicle ended up in the middle of the intersection sandwiched between two cars. Someone helped the Applicant out of her vehicle. She became emotional after the accident. Her husband was called to the scene and he took her to the hospital. The Applicant sustained soft tissue injuries. Shortly after the accident her mental condition started to be affected and it deteriorated significantly to the point where she did not like to be alone, started hearing voices, and has been unable to return to work. The Applicant’s family doctor referred her to Dr. Dhaliwal for psychiatric treatment.

Background

The following issues were identified in dispute in the Pre-Hearing letter dated December 15, 2016: income replacement benefits (“IRB”), medical benefits, rehabilitation benefits, attendant care benefits, cost of examinations, cost of clinical notes and records, special award, CAT, interest and expenses. At the commencement of the Hearing, the parties advised that the only issues remaining in dispute were the following: CAT, special award, interest and expenses.

The Parties’ Positions

It is the position of the Applicant that, as a result of the MVA of February 17, 2014, she sustained an impairment that in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guidelines”) has resulted in a class 4 impairment (marked impairment) due to mental or behavioural disorder.

The Insurer disagrees. The Insurer submits that the Applicant has not met the onus of proving that she suffered a CAT impairment as a result of this accident. As well, Unifund submits there has been a breach of procedural fairness where the Applicant has frustrated Unifund’s efforts at obtaining reports from qualified medical assessors to address CAT entitlement in a reliable and meaningful way.

The Applicant’s Testimony

When the Applicant testified, she spoke very slowly, had her eyes closed at times, and fell asleep on occasion. She was born in India, studied accounting there, and came to Canada in 2003 when she was approximately 45 years old. At the time of the accident the Applicant was working at a call centre and she enjoyed her job. She worked full-time hours and often worked overtime hours. She also cooked for herself and her husband and did all their housework. She had no problems prior to MVA. Since the MVA the Applicant has been unable to return to work.

She testified that since the MVA she wants her family members to be around her all the time as she thinks something will happen if she is alone and she is afraid. She is taking lots of medication, which helps on occasion. She recalls her family doctor sent her to a lot of different doctors, including Dr. Dhaliwal. She used to enjoy socializing with friends but since the accident she does not like to do so. She no longer volunteers at her temple and she is no longer intimate with her husband. She testified that she can’t do most things anymore. She can’t even make herself coffee in the morning as she gets confused. She is unable to go to the store alone and is scared to even go into her backyard alone. She has trouble sleeping as she hears voices. The Applicant testified that she also has had physical issues since the MVA including issues with her neck, right shoulder, elbow, right knee, hip and back. Since the MVA she uses a cane for support and balance.

Since the MVA, the Applicant testified she saw a lot of different doctors and tried multiple types of treatment. She also received medical treatment in India.

During her cross-examination, the Applicant testified that she does not recall whether or not she hit her head during the MVA. She said she understands English very well and does not require an interpreter. She said she speaks with Dr. Dhaliwal in English and believes his treatment is helping; he prescribes her medication. She confirmed that in 2009 (prior to the 2014 MVA) she was diagnosed with depression and took medication for it. The Applicant believed her depression at that time was due to stress as she was being treated for cancer and had recently been laid off from her job. The Applicant went on to testify that her psychological condition at present is much worse as now she is hearing voices, is no longer socializing with friends and is scared. She explained that she can no longer do any housekeeping tasks due to her physical issues and because the voices are always on her mind.

Mr. Ashok Patel

The Applicant’s husband testified that prior to the MVA, the Applicant did not suffer delusional behaviour or hear voices, nor was she afraid to be alone. She was working full-time. He recalls being called by the Applicant after the MVA. When he got to the scene of the accident, he saw that his wife’s car had been sandwiched between two cars. The Applicant was sitting in a police car; she was shaking and not talking properly. He testified that approximately one month after the MVA, she was scared and experiencing flashbacks of the MVA; she didn’t want to be in the car. About four to six months post MVA, the Applicant mentioned she was hearing voices.

Since the MVA, the Applicant must be reminded to shower and brush her teeth, she is unable to communicate with a retail clerk or with a bus driver, she is afraid to travel without someone, she cannot drive, she is unable to follow directions to take a bus, she is no longer sexually intimate, she continues to have flashbacks and nightmares, her social activities are limited to family only, she is unable to work in any capacity, and she no longer volunteers at temple.

During cross-examination, Mr. Patel testified that he did not believe the Applicant required a second opinion or a referral to the Centre for Addiction and Mental Health. She was receiving psychiatric treatment from Dr. Dhaliwal and he believes her condition has gotten a little better since she started seeing him. Mr. Patel testified that he completes all the work the Applicant’s former attendant use to complete. On average he assists her four to five hours per day depending on her needs which is a decrease of about an hour since the MVA. Mr. Patel was unclear on why they stopped using the services of Nurse Next Door to assist his wife. He thought it may have to do with the insurance company but it was not because the Applicant was independent with her self-care.

Dr. Dhaliwal

Dr. Dhaliwal testified that he has practiced psychiatry for 31 years. He has been in private practice since moving to Brampton in 2011 and previously worked for 25 years in psychiatry. At one point he was a Chief of Psychiatry and also practiced in a hospital in Windsor. He was a professor at the medical school for the University of Western Ontario. Dr. Dhaliwal testified he has treated many patients whose impairments arose due to motor vehicle accidents over his career. He believes he treated approximately 70 such patients in the last five years. He estimated that in the past five years he has been asked approximately 10-12 times by plaintiff lawyers whether or not his patients suffer a catastrophic impairment, and out of those requests, he has found on about four to six occasions his patients suffered a catastrophic impairment.

Both counsel agreed the doctor was an expert in psychiatry and he was qualified as such for the purposes of this Hearing.

Dr. Dhaliwal testified that the Applicant has been a patient of his since she was referred to him by her family doctor in March 2014. He has been providing her with treatment since that time in the form of talk sessions as well as prescribing pharmaceuticals. Dr. Dhaliwal testified and prepared a report dated July 7, 2015 which came to the conclusion that the Applicant suffers from a Marked Impairment of her functioning pursuant to the AMA Guidelines.² He found the Applicant suffers from major psychiatric disorder which affects her functional capacity in all 4 domains. He also noted that prior to the MVA she had no clinical illness and was functional. He testified that the Applicant appears sad and helpless and asks him if she will get better. According to the doctor, the Applicant shows signs of PTSD; she still has flashbacks over 2 years since the accident in the absence of a diagnosis of schizophrenia or bipolar disorder. According to Dr. Dhaliwal, the Applicant’s pain is a constant reminder of the accident and it brings on sadness and flashbacks.

When being cross-examined, Dr. Dhaliwal testified that he did not have any specialized medical-legal experience, but rather he provides reports in these situations because he is asked to do so for the patients under his treatment. He believes he saw the Applicant on seven occasions for treatment prior to writing the CAT report. He was unaware of her 2009 depression prior to writing the report and even if he did know he testified that he did not think it would have made a difference because the Applicant was “functioning fine” before MVA. He stated even if she was prescribed medication for her depression it would not have changed his treatment. He confirmed the CAT report was completed prior to the two year mark since the MVA and was not aware it is usually completed after two years as he was unfamiliar with the technical legal issues. It was the doctor’s opinion that when he wrote the report her condition had become chronic and acute exacerbations of her symptoms were possible at any time. He testified that he was familiar with the AMA Guidelines and used them to write CAT reports four or five times in the last five years. When asked where in his report was his analysis on Criteria 8: Mental-Behavioural Impairment, he responded that it is located on the entire second page of his report and touches on all spheres. He further testified that his analysis is spread out throughout his entire report and his findings were that the Applicant is unable to function in her daily life and cannot do anything.

Dr. Seiden

Both parties agreed and I qualified Dr. Seiden as an expert for the Insurer in CAT assessments and the AMA Guidelines. According to the doctor he mainly gets involved in complicated cases. Seiden Health does medical-legal assessments, predominately related to MVAs. Dr. Seiden owns Seiden Health and is in charge of quality control. Last year he was involved with approximately 75 CAT assessments; he does the majority of the executive summaries for the assessments. In his career he has worked on more than 1000 CAT assessments.

He prepared a triage report for the Insurer on the Applicant. The triage function involves making sure all the documentation required by the AMA Guidelines is obtained, asking for what is missing and deciding on the appropriate assessments to be completed.

He testified that Clinical Psychologists and Psychiatrists deal with Criteria 8 in the AMA Guidelines.

Dr. Seiden testified that as part of his file review, he reviewed a Preliminary Report prepared for the Applicant from Dr. Becker based upon a paper review.³ He noted that according to this report Dr. Dhaliwal’s CAT Assessment only identified a Moderate Impairment under Criteria 8 and Dr. Becker did not find her condition was stable at the time of the CAT assessment.

Dr. Seiden testified about the report he wrote dated January 8, 2016.⁴ He noted that the history obtained by Dr. Dhaliwal for the Applicant was different from pervious histories obtained by other medical practitioners and it is important to obtain an accurate history. He also testified that in a more traditional CAT report, a more detailed assessment of the severity of impairments is discussed. As well, each of the four categories in Criteria 8 should be given a class.

When being cross-examined, Dr. Seiden testified that Dr. Dhaliwal’s report read like a consultation report instead of a medical-legal report. He confirmed that in the AMA Guidelines it says Marked Impairment after Class 4. Dr. Seiden further testified that it may be possible it is a stylistic issue he is having with Dr. Dhaliwal’s report, and a standard report would have the words “Class 4” but he agreed Class 4 means Marked Impairment. He agreed with Applicant’s counsel that on page 5 of Dr. Dhaliwal’s report, it says the Applicant’s functionality suffered a Marked Impairment.

Dr. Seiden confirmed he is not a psychiatrist and cannot prepare an opinion on the question of whether or not the Applicant suffered from a Marked Impairment.

The Applicant`s Position

Catastrophic Impairment

The evidence of Ms. Patel, Mr. Patel, and Dr. Dhaliwal throughout the Hearing demonstrated that the Applicant suffers from a Marked Impairment of the AMA Guidelines’ four aspects of functional limitation. It was the opinion of T. Sivapalan, an occupational therapist, as per the report dated August 6, 2015, that the Applicant requires $7,574.62 of attendant care per month for basic supervisory care as she lacks the ability to respond to an emergency situation and needs custodial care.⁵ The Applicant`s family doctor, Dr. Shilash, opined in his report dated February 28, 2015 that Ms. Patel suffers a complete inability to carry on a normal life⁶ and he supported the Application for catastrophic impairment.⁷

The Insurer sent the Applicant to two psychiatrists on four separate occasions who claimed she could not communicate.⁸ Unifund did not enter into evidence anything to the contrary on the Applicant’s medical impairments. As well, the Applicant submits when Dr. Dhaliwal was examined on his knowledge of the AMA Guidelines, Unifund did not, on a balance of probabilities, disprove the expert evidence of Dr. Dhaliwal as it pertains to addressing the question of Marked Impairment.

It appears the Insurer does not agree with the sufficiency of information with which Dr. Dhaliwal based his conclusion of Marked Impairment. However, in support of this position the Insurer did not present the evidence of a psychiatrist who could have conducted a paper review to comment on the sufficiency or insufficiency Dr. Dhaliwal’s report or his Marked Impairment conclusion.

The Applicant also submits that the surveillance, which took place over several days, conducted by the tort defendant and entered into evidence in this Hearing, reveals the Applicant to be as disabled as she presented at the Hearing and to the doctors.⁹

In response to the Insurer’s arguments made in its closing submissions that the Application for Arbitration should be dismissed due to the Applicant’s refusal to attend CAT Insurer’s Examinations (“IEs”) per s. 44 of the Schedule, the Applicant takes the position that this argument was previously dealt with by Arbitrator Parish after the Insurer brought a motion seeking an adjournment of the Hearing based on the Applicant’s refusal to attend IEs. The Applicant notes that the same evidence and arguments outlined in the Insurer’s closing submissions were used to argue for the adjournment. Arbitrator Parish denied the adjournment request; her letter read in part, “I do not find that the Insurer has taken the necessary steps to ensure the completion of their catastrophic impairment assessments in advance of the scheduled Hearing.”¹⁰ Arbitrator Parish’s determination is a finding of fact and the submissions of the Insurer are an attempt to re-litigate the results of the previous motion to obtain a different result. The Court of Appeal in Silvestri held that an inconsistent judgment does not promote the goals of efficiency and justice. More generally, inconsistent judgments threaten the integrity of the administration of justice.¹¹ According to the Applicant, Unifund’s continuation of the argument is an abuse of process and therefore as it has already been found that the Insurer prejudiced itself by not scheduling the assessments, its ongoing submissions on the subject should not be accepted if judgments are to be consistent.

Special Award

According to the Applicant, a special award may be ordered even if an insurer with the best intentions falls below the standard of reasonable conduct and there was no evidence of malice or intent to harm by the adjuster.¹²

With respect to IRBs, while Unifund never terminated them, it did stop paying them for 527 days without a valid reason. Ms. Patel’s Long Term Disability (“LTD”) was initially approved but terminated by her LTD provider because she left Canada. Section 47 of the Schedule would give Unifund credit for collateral benefits Ms. Patel receives, however Unifund decided that it would take credit for collaterals it believed Ms. Patel should be receiving. On April 17, 2015 Unifund was advised that Ms. Patel’s LTD benefits had been terminated and was provided with emails and letters between Applicant’s counsel and the LTD Insurer confirming same. Ms. Patel also asked the Insurer to pay the full IRB.¹³ Unifund responded by advising that it would continue to take credit for the LTD benefit despite the fact that Ms. Patel was not receiving it. After 527 days Unifund ended up sending a cheque for $19,259.40 and did not provide any explanation for the non-payment. Unifund maintained the non-payment through the mediation process and when filing its arbitration defence. The Applicant submits she has proven on a balance of probabilities that Unifund acted unreasonably.

The Applicant further submits Unifund denied several treatment plans which were originally the subject of litigation for years until settled more recently. In regard to attendant care benefits, the Insurer has known for two years of the Applicant’s need for 24 hour supervisory care based on the various reports, including the Form 1 recommending $7,574.62 of attendant care per month.¹⁴ The Insurer’s section 44 Occupational Therapist (“OT”) conducted an assessment of the Applicant but then refused to quantify the amount of attendant care payable.¹⁵ The Insurer was also aware the Applicant was incurring the cost of attendant care until the Insurer refused to pay the treatment provider pending the completion of the section 44 OT report, which the assessor then refused to do.¹⁶ The Applicant submits the Insurer’s decision to deny entitlement despite the presence of the OCF-19, the non-opinion of the section 44 assessor, and the opinion that 24 hour care is required, are sufficient to prove on a balance of probabilities that the Insurer acted unreasonably with respect to attendant care benefits.

As well, the Applicant’s position is that the Insurer’s denial of enhanced attendant care benefits is unreasonable. The Insurer first said that the two OCF-19s submitted were incomplete as they do not have an explanation why Ms. Patel is applying for enhanced benefits 72 weeks after the accident.¹⁷ However both OCF-19s confirm the Applicant’s condition will continue and 21 weeks later the Insurer advised that it is denying enhanced benefits due to insufficient medical documentation.¹⁸

The Applicant takes the position that despite the Insurer paying an amount towards attendant care benefits prior to the commencement of the Hearing; section 3(8) of the Schedule permits the benefit to be deemed incurred for the purposes of the Hearing. The Applicant submits that 50% of $6,000 per month from the date of the OCF-19 to date is the suggested calculation for the special award. For the IRBs and medical benefits, the Applicant submits that 50% of the benefits (including interest) for the period of time that full benefits were withheld is the suggested calculation. In Sinnapu, Director’s Delegate Blackman determined that the special award is payable on the benefits and interest that were outstanding at the time that the issues of benefits were resolved by the parties.¹⁹

The Insurer’s Position

Catastrophic Impairment

Unifund notes that Dr. Seiden was qualified as an expert of the AMA Guidelines and CAT impairment. He has been involved in over a thousand CAT assessments. His evidence with respect to the use of the AMA Guidelines and CAT assessments is superior to that of Dr. Dhaliwal who admitted to having completed only 5 CAT assessments in the last 5 years.

The Insurer takes the position that the Applicant’s CAT Application ignores the AMA Guidelines and Dr. Dhaliwal’s CAT Report failed to acknowledge and adhere to the AMA Guidelines and thus is not compliant with s. 3(2)(e) and (f) Schedule. Contrary to the AMA Guidelines and Schedule, Dr. Dhaliwal failed to provide a Whole Person Impairment (“WPI”) rating under Criteria 7.

An applicant’s experts must both conclude that the applicant meets the criteria for CAT impairment but also need to set out exactly how they translated impairments into the numerical rating under the AMA Guidelines.²⁰ Unifund notes that Dr. Dhaliwal only concluded for the first time at the Hearing that the Applicant’s mental impairment warranted a 55% WPI on its own but did not provide an explanation for it.

With respect to Criteria 8, Dr. Seiden testified that Chapter 14 of the AMA Guidelines must be adhered to and an assessment on the four areas of functioning must be completed.²¹ The doctor referred back to Chapter 2.4 of the AMA Guidelines that require an explanation of the impact of the medical condition on life activities, with a list of activities affected, the medical basis for concluding that the condition and the patient’s symptoms have or have not become stable, an explanation of the medical basis for concluding that the individual is or is not likely to suffer injury or harm or further impairment by engaging in activities of daily living or other activities necessary to meet personal, social, and occupational demands.²² According to Dr. Seiden, physical testing and observation are critical; a traditional CAT Application involves an OT who measures a claimant’s level of functionality and reports this to a psychiatrist who then determines the level of impairment per the table in Chapter 14.7. Unifund submits that Dr. Dhaliwal’s assessment of the Applicant’s functional disability was limited to the Applicant’s and her husband’s verbal reports and there is no evidence of physical testing or observation completed.

Unifund also highlights that Dr. Dhaliwal’s report failed to provide an informative assessment of the Applicant under the four areas of functioning and failed to conform to the requirements of Chapter 14.6 and 14.7 of the AMA Guidelines and his report does not mention the AMA Guidelines. During cross-examination, Unifund notes that Dr. Dhaliwal was not able to distinguish the different levels of impairment and classes as set out in the Table in Chapter 14.7 and when asked to point to the relevant reference, he simply replied that it was “somewhere in there”. Yet, he provides an opinion for a Marked Impairment under Criterion 8.

Unifund submits Dr. Dhaliwal’s report was insufficient for a number of reasons. A consideration of the CAT threshold involves the application of a statutory test and not a medical test. Any concept of a CAT injury, other than the specific meaning ascribed that term by legislation must be discarded when considering whether the statutory test is met.²³ When an expert’s testimony and medical report do not contain evidence of rating impairment using the methods set out in the AMA Guidelines, the testimony and report are deemed to be bald, unsupported opinions.²⁴ And where the report of a medical professional does not include all the criteria and methods in the AMA Guidelines, the medical evidence will be determined to be deficient because of an outright lack of evidence.²⁵ Unifund submits that following Arbitrator Wilson’s reasoning in Khan and State Farm, the Applicant’s CAT Report fails to discharge her burden of proof.

Unifund also argues that there is evidence before me rejecting a finding of CAT impairment or that further CAT assessments are required. Specifically the Insurer relies on a paper review by Dr. Becker, who was retained by the Applicant and who wrote a Preliminary Report that concluded that “Ms. Patel is unlikely to meet the CAT threshold under Criterion 7, and that there is insufficient information to make an accurate determination of CAT impairment under Criterion 8”.²⁶ As well, Dr. Becker reported that the Applicant’s condition was not stable, and that CAT assessments should be done 2 years post-accident in order to provide a more accurate evaluation.²⁷ Unifund submits that Dr. Seiden in both his report and testimony noted the following, which was consistent with Dr. Becker’s findings, that the information in the Applicant’s file is conflicting as there is evidence of objective pathology/impairment within the musculoskeletal/peripheral neurological systems however there is a lack definitive expert opinions on what is pre-existing and no opinions on proportionment of pre-existing to accident related. Specifically, the reports from the treating psychiatrist and psychologist seem to be missing what could be important details of past mental health history and in some areas show conflicts.²⁸

The Insurer’s alternative argument with respect to CAT is that the Application for Arbitration dated November 19, 2015 should be dismissed due to the Applicant’s refusal to attend CAT IEs per s. 44 of the Schedule. The Insurer provided submissions in support of its position that the Applicant refused and/or delayed attending IE assessments.

Special Award

Unifund denies that it unreasonably withheld or delayed payments of benefits and denies that its “behaviour throughout the claim was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”, thus not warranting a special award.²⁹

With respect to medical benefits, the Insurer submits that treatment plans originally advanced in the Application for Arbitration were partially approved by Unifund for valid reasons – namely they were approved up to the maximum allowable under the fee guidelines and certain treatment plans (f) – (h) OCF-18 October 2015 ($227), OCF-18 May 15, 2015 ($4,019.95), OCF-18 April 2015 ($3,262.02) were not actually submitted.

With respect to attendant care benefits, they were not denied and as per s. 19 of the Schedule, the Applicant had $36,000 in benefits in the first 104 weeks yet only $6,504.61 in services was incurred. Unifund also notes that the inconclusive s. 44 OT Assessment dated October 27, 2015 did not trigger a denial.

IRBs were not denied, but there was a dispute on quantum. The Applicant qualified for LTD and CPP Benefits. On May 2015, she sought increased IRBs due to a LTD denial. Unifund made a s. 33 request for the updated LTD file which went unanswered. In May 2016, Unifund recalculated IRBs and paid $17,675.09 of the difference owed plus $1,584.31 in interest. An adjustment was also made for an overpayment of $888.80. Unifund submits that any delay in adjusting the IRB payment was because of the Applicant’s delay in providing the updated LTD file and Unifund has already paid interest on any overdue payments.

Unifund submits that any actions by the Applicant that make the claim more difficult to determine, or delay the process, are relevant considerations.³⁰ The facts in this case are that the Applicant took 16 months to complete the capacity assessment, appoint Power of Attorneys (“POAs”) and provide relevant productions. In contrast, Unifund took four months to set up relevant CAT IEs upon the Applicant providing the POAs and productions. The Applicant then refused to attend the CAT IEs without reason, and forced the arbitration of this matter while denying Unifund its right to IEs. As well, at all material times, the Applicant had about $29,000 of attendant care benefits available to her up to the 104th week as well as ongoing IRB payments and almost $32,000 of Med/Rehab benefits until the May 2017 settlement, so any allegation of undue hardship is unfounded.

The Insurer also submits that in the event this Tribunal finds that a special award is warranted, where the benefits in dispute have resolved, a special award should not be ordered.³¹ A special award is not a stand-alone claim. It should not be treated as a separate claim to be advanced like a claim for the benefits themselves. In this matter, the disputed issues were resolved months prior to this arbitration and before the May 2017 settlement, incurred attendant care services and treatment plans were paid within the Schedule’s timeline. The difference owed in IRB was paid in 2016.

In conclusion, Unifund submits there are no measurable benefits owed at the time of this arbitration and a declaration of CAT entitlement has no monetary value. Accordingly, no special award is payable.

Findings

Is the Applicant Catastrophically Impaired?

I find that the Applicant has proven on a balance of probabilities that she was catastrophically impaired as a result of the MVA. The evidence provided by the Applicant herself and her husband established very clearly the impact of the MVA on her life. Specifically, post-accident she is unable to carry out her self-care and personal hygiene. Her ability to communicate, ambulate, travel, have sexual relations, sleep and participate in social and recreational activities have all been significantly impaired since the accident. Her social activities are limited to family only, she is unable to work in any capacity, and she no longer volunteers at temple.

I note the following from Dr. Dhaliwal’s testimony: it was the doctor’s opinion that the Applicant suffers from a major psychiatric disorder which affects her functional capacity, which is 4 components. He found she was affected in all 4 domains. He also testified that he does not see that severe an impairment very often. He noted that when he saw her to prepare the report in 2015, her condition had lasted more than one year and it may get worse. He also testified that the last time he saw her was on July 17, 2017, a few weeks prior to the start of this Hearing. He testified that his findings that the Applicant suffered a CAT impairment were not wrong and he noted since he authored his report all her symptoms have been consistent with his findings.

I note the Insurer did not have an expert opinion refuting that the Applicant suffered a CAT impairment. It also did not provide an expert’s paper review of Dr. Dhaliwal’s report dated July 7, 2015, which found the Applicant to be CAT.

Dr. Seiden was qualified as an expert in CAT assessments and the AMA Guidelines and provided testimony for the Insurer. He has received special training on the AMA Guidelines. From his testimony at the Hearing, during his direct examination by counsel for the Insurer, he noted that Dr. Dhaliwal’s July 7, 2015 report did not provide a whole person impairment number. As well, he testified that the doctor needed to give a class, not an opinion in his report according to the AMA Guidelines. He testified about what a “traditional” report would include when providing an assessment of severity. When being cross-examined, Dr. Seiden testified that he does not know if the Applicant suffered a Marked Impairment. He also confirmed that his review would be “over” or not required if a doctor determines an individual has a Marked Impairment and the doctor has done a proper assessment – the patient would be considered CAT. Dr. Seiden went on to confirm that the AMA Guidelines at page 301 say Marked Impairment after Class 4 and it is possible that it is a stylistic issue he has with Dr. Dhaliwal’s report. Dr. Seiden noted that a standard report would have the words “class 4” but he agreed with counsel for the Applicant that class 4 means Marked Impairment. And I also note that during cross-examination, Dr. Seiden conceded that that on page 5 of Dr. Dhaliwal’s report, it says the Applicant’s functionality suffered a Marked Impairment.

I also note the Insurer relied on the decision of Khan and State Farm in support of me finding that the CAT report submitted by the Applicant failed to prove she was in fact CAT.³² However, as applicant’s counsel noted in Khan, the applicant’s own expert found that the applicant’s condition was not caused or made worse by the accident and the doctor and the expert who wrote the CAT report admitted to not being familiar with the analysis of CAT as set out in the AMA Guidelines. The facts in the case before me are very different in that Dr. Dhaliwal clearly finds the accident responsible for the Applicant’s condition and testified that he is familiar with the AMA Guidelines and employed them in writing the CAT report. Likewise, the other case relied on by the Insurer, Allstate and T.S.,³³ is distinguishable as the findings were based on the fact that the treating psychiatrist did not even address the AMA Guidelines.

Dr. Dhaliwal testified that he saw the Applicant approximately seven times before he drafted the CAT assessment, which to me demonstrates that he had ample opportunity to assess her condition and make a determination on whether or not she sustained a CAT impairment. I also note that while Dr. Dhaliwal assessed the Applicant less than two years after the MVA, which is not a standard practice for CAT assessments, he testified that by that time her condition had already become chronic and acute exacerbation of her symptoms may come at any time. I find that Dr. Dhaliwal’s report is consistent with Chapter 14 of the AMA Guidelines. Throughout his report, he provided an assessment on the Applicant’s four areas of functioning.

It appears to me that both the Insurer and Dr. Seiden do not find Dr. Dhaliwal’s CAT assessment to be of the usual or standard style reports generated by multi-disciplinary medical assessment companies. In his testimony, Dr. Seiden conceded that it is possible that it is a stylistic issue he has with Dr. Dhaliwal’s report. I also note that Dr. Seiden conceded that class 4 means Marked Impairment so it is clear that Dr. Dhaliwal’s findings were that the Applicant’s functional capacity is Markedly Impaired.³⁴ I acknowledge after reviewing Dr. Dhaliwal’s report it is evident that he does not employ a medical-legal style of report writing. However, it is clear from its content, the medical documents he reviewed, his interview with the Applicant’s husband, and his own assessments of the Applicant from being her treating psychiatrist for over one year that he found she suffers from a Marked Impairment in each of the four aspects of functioning. Further, I also find that from the testimony provided by the Applicant and her husband, which was largely unchallenged by the Insurer, and the medical evidence that the Applicant is Markedly Impaired with respect to her activities of daily living, social functioning, concentration, adaptation, and thus is catastrophically impaired.

In the alternative, should the Application for Arbitration be dismissed for Failure to Attend CAT Assessments?

The Insurer submits that there has been a breach of procedural fairness where the Applicant has frustrated Unifund’s efforts at obtaining reports from qualified medical assessors to address CAT entitlement in a reliable and meaningful way. The Applicant disagrees that the Applicant failed to attend CAT assessments and further submits that this issue has previously been dealt with by Arbitrator Parish after the Insurer brought a motion seeking an adjournment of the Hearing based on the Applicant’s refusal to attend IEs.

I find that this issue has already been dealt with by Arbitrator Parish and I note the Insurer did not appeal Arbitrator Parish’s finding and it is trying to do so before me. I also note that the Schedule does not permit an application to be dismissed for failure to attend an assessment but rather it permits an application to be stayed. Given the Schedule and that this issue has already been decided, I find it improper for the Insurer to be requesting the Application for Arbitration to be dismissed and decline to do so.

Special Award

The Applicant is seeking a special award on several issues that were previously in dispute but were paid by the Insurer with interest prior to the commencement of the Hearing. I note that neither party advised me of any settlement documentation which documented that the issue of a special award concerning these benefits had been dealt with. The Insurer is taking the position that as the IRBs, medical and attendant care benefits were dealt with prior to the Hearing, I have no jurisdiction to deal with a special award with respect to those benefits. The Insurer provided me with the case of Whitney and Co-operators, which the Insurer submits stands for the proposition that where the benefits in dispute have been resolved, a special award should not be ordered.³⁵ However, I note in this case, the Arbitrator found that the Applicant was not entitled to the benefits being sought rather than the benefits having been resolved and that was the reason there was no authority for a special award. I also note in the case before me that the IRBs and attendant care issues were not live issues at the Hearing due to a unilateral decision of the Insurer to pay these benefits with interest prior to the commencement of the Hearing. For these reasons, I believe I do have jurisdiction to consider whether or not a special award is warranted for the handling of any of the issues in dispute as set out in the Pre-Hearing letter dated December 15, 2016.

The Applicant provided the Sinnapu decision of Director’s Delegate Blackman, which was upheld on appeal, in support of the proposition that even an insurer with the best of intentions can fall below the standard of reasonable conduct.³⁶ The Insurer relies on the Plowright decision which stated that a special award is warranted when an insurer’s behaviour throughout the claim was excessive, imprudent, stubborn, unyielding or immoderate.³⁷ As well, the Insurer submits that any actions by the Applicant that make the claim more difficult to determine or delay the process are relevant considerations for the determination of a special award.³⁸

I also note from submissions from the Applicant that the Insurer, after withholding IRBs for 527 days, brought them up to date with interest and did not provide an explanation for the non-payment. The Applicant notes that on April 7, 2015, the Insurer was advised that the Applicant’s LTD benefits were terminated and the Insurer was asked to start paying the entire amount payable for the IRB;³⁹ however, the Insurer failed to do so. The Insurer’s position is that it made a request as per s. 33 of the Schedule for the Applicant’s updated LTD file which went unanswered for a time but when received it brought the IRBs up-to-date in May of 2016 with interest. It is the Insurer’s position that the delay in adjusting the IRB was due to the Applicant’s delay in providing the updated LTD file and it has already paid interest on the overdue payments so no special award is warranted.

It appears after 527 days the IRB was brought up date by the Insurer. No evidence was provided to me on why not having the LTD file but having a letter from the LTD insurer advising of a stoppage of benefits necessitated a suspension of IRB benefits. I find the Insurer’s handling of the IRB unreasonable and imprudent and order a special award of 50% of the total amount paid to the Applicant for the IRB, which works out to $9,629.70. I find 50% is warranted given the facts of this situation.

The Applicant is also seeking a special award based on the delay in approving several treatment plans for medical benefits. The Applicant did not provide much in the way of detail on this issue by way of evidence and final submissions. According to the Insurer the treatment plans noted in the Application for Arbitration were either approved up to the maximum allowable under the guidelines or there was no proof that some of them were submitted. Based on the evidence before me, I find the Applicant has not proven she is entitled to a special award with respect to the Insurer’s handling of her medical benefits.

With respect to the attendant care benefits, the Insurer’s position that only $6,504.61 in services was incurred during the first 104 weeks was unchallenged by the Applicant. I also note that the Applicant’s husband gave testimony that he was providing a significant amount of attendant care for his wife and no details of any economic loss were provided. As well, he did not provide any testimony that the Applicant did not receive the attendant care she required. Given the evidence before me, I find the Applicant has not proven she is entitled to a special award with respect to the Insurer’s handling of her attendant care benefits.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

November 17, 2017

Marshall Schnapp Arbitrator

Date

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 302

FSCO A15-008374

BETWEEN:

BINDU PATEL

Applicant

and

UNIFUND ASSURANCE COMPANY

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:

1. Ms. Patel sustained a catastrophic impairment as the result of the motor vehicle accident of February 17, 2014.

2. Unifund is liable to pay a special award in the amount of $9,629.70 because it unreasonably withheld or delayed the payment of income replacement benefits to Ms. Patel, plus applicable interest.

3. Unifund is not liable to pay a special award with respect to medical benefits and attendant care benefits.

4. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

November 17, 2017

Marshall Schnapp Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2OCF-19 and psychiatric report of Dr. Dhaliwal dated July 7, 2015, Tab 32.
3. 3Exhibit 1, Volume 3, Tab 33, Catastrophic Impairment Review-Preliminary Report, of Lisa Becker, MD, dated October 22, 2015.
4. 4Tab 34, Dr. Seiden’s report dated January 8, 2016.
5. 5Arbitration Brief, Volume 3, Tab 27, OT assessment of T. Sivapalan, dated August 6, 2015 with Form 1 dated July 20, 2015.
6. 6Tab 26, OCF-3 of the GP, Dr. Shilash, dated February 28, 2015.
7. 7Tab 21.b, OCF-19 of the GP, Dr. Shilash, dated July 16, 2015.
8. 8Tab 32.a, section 44 reports of psychiatrist, Dr. Debow, dated June 16 and July 7, 2015; Tab 32.a, section 44 report of psychiatrist, Dr. Hines, dated October 13, 2015
9. 9Tab 50a, Surveillance reports of CKR Global Investigations and Xprea Investigations, dated April 8, 2014, August 25, 2014, and July 27, 2015.
10. 10Decision of Arbitrator Parish, dated July 17, 2017.
11. 11Silvestri et al. v. Hardy et al., 2009 ONCA 400, 95 O.R. (3d) 555 (ON CA) at paras. 9 and 19.
12. 12Sinnapu and Economical (FSCO A09-000900, December 3, 2010) at p. 6.
13. 13Letter dated April 17, 2015 from Mr. Schneider to Ms. Lush (Unifund), Arbitration Brief, Volume 1, Tab 13, pp. 19-26.
14. 14Tab 27, OT assessment of T. Sivapalan dated August 6, 2015 with Form 1 dated July 20, 2015.
15. 15Tab 31, section 44 OT assessment of A. Bhatnagar, dated May 19, 2015 and Tab 32.a, section 44 OT assessment addendum of A. Bhatnagar, dated October 27, 2015.
16. 16Correspondence from Unifund, dated May 28, 2015.
17. 17Tab 13, Correspondence from Unifund, dated August 4, 2015.
18. 18Tab 13, Correspondence from Unifund, dated December 3, 2015.
19. 19Sinnapu and Economical (FSCO A09-000900, December 3, 2010) at p. 23.
20. 20Khan and State Farm, FSCO A13-008747 (“Khan”) at p. 13.
21. 21Exhibit 2, AMA Guidelines at ss. 14.6 and 14.7.
22. 22Exhibit 2, AMA Guidelines at s. 2.4.
23. 23Liu v. 1226071 Ontario Inc, 2009 ONCA 571 (Can LII) at para. 30.
24. 24Allstate Insurance Company of Canada and T.S. (Appeal P11-00032) (“T.S.”) at p. 13.
25. 25Ibid., at p. 12.
26. 26Exhibit 1, Volume 3, Tab 33, Catastrophic Impairment Review-Preliminary Report of Lisa Becker, MD, dated October 22, 2015 at pp. 10-11.
27. 27Ibid., at p. 11.
28. 28Supplementary Book of Documents: S. 44 Triage Assessment Report by Dr. Seiden, January 8, 2016 at p. 29 (“Triage Report”).
29. 29Plowright and Wellington (FSCO A-003985, October 29, 1993) at p. 17.
30. 30Persofsky and Liberty Mutual Insurance Company (P00-00041) FSCO Appeal at para 5.
31. 31Whitney and Co-operators (FSCO A-001005, March 31, 1993) p. 19.
32. 32Khan and State Farm, FSCO A13-008747 at p. 12.
33. 33Allstate Insurance Company and of Canada and T.S. (Appeal P11-00032).
34. 34Arbitration Brief, Volume 3, Tab 32, Psychiatric Report of Dr. Dhaliwal, dated July 7, 2015, at p. 5.
35. 35Whitney and Co-operators (FSCO A-001005, March 31, 1993) at p. 19
36. 36Sinnapu and. Economical (FSCO A09-000900, December 3, 2010).
37. 37Plowright and Wellington (FSCO A-003985, October 29, 1993), at p. 17.
38. 38Persofsky and Liberty Mutual Insurance Company (P00-00041) FSCO Appeal at para. 5.
39. 39Tab 13, Correspondence from Applicant, dated April 17 and May 4, 2015.