Shannon Doxtater v. Aviva Insurance Company of Canada, 2017 ONFSCDRS 304

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

Neutral Citation: 2017 ONFSCDRS 304

FSCO A16-002361

BETWEEN:

SHANNON DOXTATER

Applicant

and

AVIVA INSURANCE COMPANY OF CANADA

Insurer

Before:

Marcel D. Mongeon, Arbitrator

Heard:

At Ottawa on September 19, 20 and 21, 2017 and by written submissions completed on September 22, 2017

Appearances:

The Applicant participated

Mr. Richard Auger and Ms. Hilary Chung for the Applicant

Ms. Megan Murphy for the Insurer

Issues:

The Applicant, Ms. Shannon Doxtater (the “Applicant”), was injured in a motor vehicle accident on October 31, 2013 and sought accident benefits from Aviva Insurance Company of Canada (“Aviva” 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 Hearing are:

Is the Applicant entitled to receive a weekly income replacement benefit, and, if so, for what periods of time and in what amounts?
Is the Applicant entitled to receive a medical benefit for $1,026.62 for massage therapy submitted on February 19, 2015?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

The Applicant is entitled to receive an income replacement benefit from December 23, 2013 to October 31, 2015 in the amount of $400 per week less amounts received from the Insurer and from other income support programs.
The Applicant is not entitled to a medical benefit for massage therapy.
The Applicant is entitled to the payment of a special award which is fixed at $1,000.
The Applicant is entitled to interest at the rate of two (2) percent per month, compounded on any overdue payments.
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.

PRELIMINARY MATTERS

At the commencement of the Hearing, I was asked to deal with three preliminary issues. These were:

A request to exclude surveillance evidence;
A request to exclude a report on the basis that the maker of the report cannot be found to summons as a witness; and
A request to exclude an Examination under Oath conducted of the Applicant on September 16, 2015.

Exclusion of surveillance

I have the following facts on the request to exclude the surveillance evidence:

This Hearing began on September 19, 2017;
Four surveillance reports were served on August 21, 2017 or only 29 days before the Hearing; and
To the surprise of the Insurer’s representative, handwritten surveillance notes were discovered to exist and were served seven days before the Hearing.

Rule 40.1 of the Dispute Resolution Practice Code (“DRPC”) is clear. At least 30 days before a hearing, a party intending to rely on any part of surveillance must serve all of the surveillance.

“[A]t least 30 days” in the rule means just that. It does not mean 29 or some other number that must be adjusted for weekends and the like as the Insurer’s representative submitted. The spirit of the DRPC is clear throughout: document exchange should take place as early as possible between parties.

The DRPC is clear that all surveillance evidence is to be served at least 30 days prior to the hearing. Although Rule 81.1 DRPC might allow me to alter deadlines such as the thirty-day period, if there were some good reason to do so, in this case there is no such reason.

The surveillance evidence is excluded from this Hearing.

Exclusion of report where maker cannot be found

In considering the request to exclude a report on the basis that its maker cannot be found to summons as a witness, I was provided the following facts:

The Insurer proposed to use reports of Dr. Gianni Maistrelli dated December 2, 2014 and January 19, 2015. Dr. Maistrelli had conducted Orthopaedic Assessments as Insurer’s Medical Examinations (“IMEs”) of the Applicant.
Commencing in March, 2017, the Applicant’s representative made requests of the Insurer’s representative to produce the files of Dr. Maistrelli and to provide an address where Dr. Maistrelli could be served.
It was determined that although Dr. Maistrelli conducted the assessments through Centric Health Medical Assessments, their business was sold to Lifemark in December 2015.
Lifemark was of little assistance in providing an address for Dr. Maistrelli. Lifemark further advised that Dr. Maistrelli was no longer on their roster.
The Applicant’s representative was diligent in attempting to find an address for Dr. Maistrelli through the College of Physicians and Surgeons of Ontario and other websites with no success.
A current address at which Dr. Maistrelli could be served a Summons to Witness was not readily available and, accordingly, the Applicant’s representative was unable to serve him such a Summons to attend for cross-examination on his report.
The Insurer’s representative was also called upon to assist and was unable to provide a current address for service.

Based on the foregoing, the Applicant’s representative asked me to order that Dr. Maistrelli’s reports would be excluded from this Hearing.

After hearing submissions of both parties, I made the following decision on this issue:

Within the appropriate timeframes of the DRPC, the Applicant asked the Insurer to present Dr. Maistrelli for cross-examination on his reports. Despite diligent efforts on the part of both parties’ representatives, an address for service of a Summons to Witness could not be obtained.

There is a gap in the DRPC. Rule 42.1 instructs us how to introduce a report. Rule 41.1 instructs us how to give notice of an intention to cross-examine a party. Unfortunately, nothing in the DRPC tells us what to do when an address cannot be obtained to allow the summonsing of a witness for cross-examination. Rule 1.2 suggests that I can fill the gap by analogy with other rules of the DRPC.

If there is no current address at which a witness who files a report can be served, there will be a problem. In part, Rule 42.2(a) attempts to solve the problem by requiring a report to be introduced into evidence to have the address of the witness. Clearly, this reference should be to a current address at the time of the eventual hearing.

It is trite law that in an arbitration such as this, every party has the right to confront the evidence to be presented against them. This is usually done through cross-examination. Although in administrative arbitrations, the DRPC attempts to expedite the presentation of evidence by the filing of reports even without having their makers appear as witnesses, the system must always allow cross-examination of those reports. It is a clear principle of natural justice that every party has the right to challenge and test the evidence to be used against them. The easiest way to ensure such a “testing” is to allow cross-examination. When a party is unable to cross-examine, the underlying evidence becomes suspect.

In this case, the simplest remedy is to exclude the reports given the lack of a current address for their makers. Although this falls against the Insurer in this case, it was in the best position to ensure that the problem had not occurred; for example, the Insurer in hiring the assessment company could have included as a term of their contract requiring the continued availability of the assessor as a witness. Because the Insurer is now unable to provide a current address at which the witness can be summonsed, the reports will be excluded. Tabs 16 and 17 of the joint document brief are excluded.

Exclusion of Examination under Oath

The third preliminary matter was to exclude an Examination under Oath conducted of the Applicant on September 15, 2015. The basis of the objection was that normally an entire Examination under Oath is not submitted in evidence, only parts relevant to cross-examination. I took the matter under advisement. The only use of the Examination was on the cross-examination of the Applicant on a minor inconsistency relating to the source of her right shoulder injury. Other than its use in this context, I have otherwise not referred to this examination in evidence. Accordingly, only that part of the Examination under Oath that was referred to shall be considered in evidence.

POST-HEARING MATTER

At the beginning of submissions at the conclusion of the Hearing, I invited the parties to provide me the written outlines of their oral submissions if they wished. I also invited the parties to provide me electronic copies of their submissions by email providing a deadline of the end of business on September 22 for electronic submission.

On September 22, 2017, the Applicant’s representative sent me three documents by email being: an electronic copy of the written submissions; a book of authorities; and, a supplementary book of authorities.

On September 23, 2017, the Applicant’s representative sent me three other documents by email being: “Applicant’s Written Supplemental Reasons”; “Applicant’s Written Submissions” with revised footnotes; and, a copy of the original MVA report.

Although I was provided a written document before the conclusion of the Hearing, the Insurer did not send me any documents by email. The Insurer’s representative objected to the material in the September 23, 2017 email from the Applicant’s representative being reviewed and considered by myself.

I have determined that it would be unfair to the Insurer and contrary to my instructions to accept any material that had not been exchanged during the period of submissions. Accordingly, I have limited my consideration of the submissions to the material that was handed to me in the Hearing and the September 22 email material. I have not used the September 23 material in the consideration of my decision.

EVIDENCE AND ANALYSIS:

Facts

The Applicant is now 41 years old. She has a high school education. She lives with her three children in a two-storey home in Ottawa and is their primary caregiver.

On October 31, 2013, the Applicant attended her family physician’s office. The notes of that appointment² indicate that she “lost job after 2 wks of paid leave during an investigation; worked at Abbott Point of Care x 14 years; has 8 wks severance with benefits then will lose drug/dental benefits. Here for prescription renewals. Feeling well.” I note that I have not received any details of the Abbott Point of Care (“Abbott”) termination.

After the appointment with her family physician, the Applicant was involved in the subject motor vehicle accident (“MVA”).³

The Applicant was the driver of a vehicle stopped at a red light. Her vehicle was rear-ended with sufficient force that her car was driven into the car in front of her. In turn, the car in front of her hit the vehicle in front of it. The Applicant recalls her head moving back and forwards a number of times. Although offered, the Applicant declined travelling by ambulance for additional medical treatment.

The Applicant proceeded to a walk-in clinic later that morning⁴ where she presented with complaints of confusion, headaches, pain in her neck and back, and general body aches. She was examined and subsequently discharged with the recommendation she see her family doctor.⁵

On November 4, 2013, the Applicant visited her family doctor, Dr. MacAskill, reporting pain in her neck and back, headaches, dizziness, light-headedness, nausea, emotional upset, fatigue, poor concentration and reduced memory. Upon examination, Dr. MacAskill noted decreased range of motion in her neck, tender paraspinal muscles in her neck, thoracic and lumbar spine and tender upper fibers of her trapezius from right to left. She noted headaches secondary to whiplash with a possible head injury/concussion.⁶ Dr. MacAskill suggested that the Applicant undergo physiotherapy.

On November 11, 2013 in a visit to her family physician, the Applicant confirmed that she was pregnant with her third child.⁷

The family physician completed an OCF-3 for the Applicant in a visit of January 15, 2014.⁸ In the physician’s note it says that the Applicant is reporting neck pain for which she is attending physiotherapy. It also notes that the Applicant is unable to receive benefits of “machines” due to pregnancy. The Applicant’s testimony was to the effect that a physiotherapist had advised her not to use certain types of machine-mediated therapies due to the Applicant’s pregnancy.

The Applicant visited Dr. MacAskill on November 25, 2014. She reported persistent neck, right shoulder and lower back pain, as well as headaches radiating from her neck to the back of her head since the collision. Dr. MacAskill observed that the Applicant continued to suffer from tenderness in her neck muscles as well as tenderness in her para-lumbar and iliac crests.⁹

The Applicant was referred by her family physician to Dr. Aubry, a Sports Medicine physician at Pro Physio, in April 2014. She attended regular appointments with Dr. Aubry in the years following the collision. Dr. Aubry’s clinical notes reflect ongoing and unresolved issues with headaches, shoulder pain, neck pain, tightness, spinal weakness, decreased range of motion and numbness. Dr. Aubry also made numerous diagnoses, including: cervical strain, cervical whiplash and chronic rotator cuff tendinitis strain. He recommended ongoing physiotherapy and massage therapy.¹⁰

The Applicant was referred to Dr. H. Finestone for concerns regarding post-traumatic pain in her neck, left anterior chest wall and upper abdomen, as well as left hand numbness and tingling. Dr. Finestone opined that a diagnosis of post-traumatic myofascial pain would appear to explain the bulk of her pain symptoms.¹¹

In 2009, the Applicant underwent investigations for her right shoulder and was found to have sustained a glenoid labrum tear. She reported ongoing intermittent pain in her right shoulder that she rated at 2-3/10 prior to the subject motor vehicle collision.¹² During her employment at Abbott, the Applicant testified to receiving appropriate accommodations to deal with this injury.

The Applicant graduated from Grade 12 in 2008. She took some apprenticeship classes through Abbott, her employer, in combination with Algonquin College.

Prior to the MVA, the Applicant was employed as an assembly operator for Abbott. She had fourteen and a half years of experience in this position, which required bimanual labour and repetition of precise and accurate assembly operation procedures. She previously worked as an assembly operator for Nortel Utechin Diatach. She has also worked as a painter and as a house cleaner.

As an assembly operator at Abbott, the Applicant’s job duties involved repetitive tasks which required constant handling and fingering, accuracy and fine motor dexterity. She worked three twelve-hour shifts per week.

The Applicant is currently not employed. She has testified that she has not been able to work on a full-time basis since the MVA. However, her testimony also established that she has worked since the MVA at cleaning houses. She was unable on cross-examination to provide any lists of the number of houses she cleans, how much time she spends in cleaning those houses or her earnings from this work.

A source of information about the Applicant’s abilities that I have been provided is a report by Dr. Albert Cheng who conducted a physiatry assessment of the Applicant in January 2017. Dr. Cheng also testified in this Arbitration by video link. The report relating to his assessment of the Applicant¹³ shows her complaints to be: neck pain; lower back pain; headaches; right shoulder symptoms and non-physical symptoms. The report showed cervical spine ranges of motion being reduced in all movement planes.¹⁴ It also showed lumbro-sacral spine ranges of motion being globally reduced.¹⁵ Manual muscle strength testing revealed normal strength of all muscles of the upper and lower extremities.¹⁶

The report opines the following diagnoses: post-traumatic mechanical neck pain and somatic cervical spine pain syndrome; chronic costovertebral joint dysfunction; chronic mechanical low back pain; chronic post-traumatic headaches; bilateral TMD joint disorder; chronic fatigue; and chronic pain syndrome with associated depressive symptomatology.¹⁷

The report also includes an opinion as to the tasks that the Applicant should avoid in the long run. These are tasks “involving sustained prolonged static postures of the head/neck and upper body, heavy lifting and carrying, forceful pushing/pulling and repetitive or sustained twisting movements.”¹⁸

Two other witnesses testified relating to the Applicant’s physical capabilities in a job setting. The first, on behalf of the Applicant, was Ms. Andrea Genereux. She was qualified as an expert in vocational rehabilitation and assessment. The report of her assessment was available.¹⁹

As a part of her report, Ms. Genereux testified that she administered the General Aptitude Test Battery (“GATB”) to the Applicant. Through a series of mental and physical tests, the GATB helps measure nine aptitudes. These aptitudes can then be compared to different occupations to determine a subject’s suitability to specific occupations. In Canada, the federal government publishes different versions of a National Occupation Classification (“NOC”) which, in turn, through the Career Handbook establishes the GATB aptitudes normally associated with an occupation. Through a further search tool, a subject’s scores on the GATB can be translated into possible occupations that they might be suitable for.

Ms. Genereux conducted the GATB for the Applicant establishing scores for the first six aptitudes. However, because she was concerned on reading Dr. Cheng’s suggestion of the Applicant’s limitations (copied above preceding footnote 18), Ms. Genereux did not perform any physical testing of the Applicant and was, accordingly, unable to establish the last three aptitudes.

Dr. Cheng was surprised that in administering the GATB Ms. Genereux did not conduct the physical tests. He was of the view that all the physical tests should have been administered subject to any complaints the subject may have had about inability to do a task.

In Ms. Genereux’s report, there was some question about whether or not she was using a correct NOC to compare the Applicant’s previous position with Abbott. I do not believe a lot turned on the point. The most important point that Ms. Genereux made was that there were no occupations in the NOC that would accommodate the Applicant’s limitations. I note that she came to this conclusion because of the lack of the three physical aptitude scores from the GATB for the Applicant. No evidence was presented as to what occupations may have been available if the physical GATB testing had been accomplished for the Applicant.

Ms. Sally Anne Nicholson testified as an expert in Occupational Therapy on behalf of the Insurer. She provided Functional Capacity Evaluation and Physical Demand Analysis reports²⁰ in part relating to the Applicant’s employment at Abbott.

Ms. Nicholson’s reports measured the Applicant’s physical capabilities and attempted to match them to the demands of the Abbott position. The conclusion is obvious at the table on page 9 of Ms. Nicholson’s report:²¹ the Applicant is unable to do her Abbott employment due to two abilities not being a match. However, other than that, Ms. Nicholson’s report only provides documentation of the Applicant’s abilities and limitations to those abilities; it does not tell me if there are any occupations for which the Application would be a job match.

The final person to testify was Chris Viveiros, an adjuster for the Insurer. He provided information about the different log systems that the Insurer used for notes about the Applicant’s field.

Analysis

The Insurer has confirmed²² that the appropriate weekly amount for the income replacement benefit for the Applicant is $400 per week. The parties had also agreed that the income replacement benefit should start on December 23, 2013.²³

There are two relevant rules and periods for an income replacement benefit in this case. These are found in section 6 of the Schedule.

The first rule – applicable to the first 104 weeks post-MVA – is that the Applicant “suffers a substantial inability to perform the essential tasks of her … [pre-MVA] employment.” The second – applicable after the first 104 weeks – is that “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 pre-104 week test is easily satisfied here. The Insurer’s own witness, Ms. Nicholson, has established that there are a number of functions of the Abbott job that could not be accomplished given the Applicant’s physical limitations. I don’t know how much easier it could be to establish a substantial inability to perform the essential tasks of the pre-MVA employment than a determination by the Insurer’s expert that the Applicant does not have a complete job match.

The post-104 test is not as easy.

From the facts, I know that the Applicant has worked as a house cleaner. I do not have any detail on such work but I also note that the work is contrary to Dr. Cheng’s report²⁴ in which he repeats the Applicant’s self-report that she requires assistance with heavier aspects of housekeeping. It is difficult to reconcile how, on one hand the Applicant can report difficulty and, yet, on the other hand, she can offer housekeeping services for a fee.

I note that I had little information about the functions that the Applicant is able to do with her own family. She did not testify to requiring or having help in her care giving and housekeeping for her three children, one of whom is autistic. I do know she continues to drive. The objective information that I know about the Applicant’s limitations and functioning are found in Ms. Nicholson’s and Dr. Cheng’s reports. These are not very helpful as there is a great deal of technical information and limitations on range of motions but little information on the Applicant’s ability to function in a work environment.

The easiest means of dealing with this situation would have been if Ms. Genereux had completed the appropriate testing to complete the GATB physical aptitudes. Unfortunately, she did not do these tests and we, therefore, have no way of converting the information that we do have into the GATB metrics to determine if Ms. Genereux’s opinion that there are no occupations that the Applicant can do given her GATB aptitudes is correct.

The Applicant’s representative has submitted that I should adopt a holistic approach in determining the Applicant’s “complete inability”.

I agree with the approach. Just because the Applicant may be suitable for some part-time positions, that is not sufficient for me to determine that she is able to find employment post-104 weeks on a full-time basis; the employment possibilities must be comparable to what she has done in the past.

Although the Applicant’s representative has concentrated on her position at Abbott, painting and housecleaning have also been a part of the Applicant’s employment history and I must consider if the Applicant is capable on a full-time basis (my emphasis) of finding employment for which she is reasonably suited by education, training or experience.

I further understand that the holistic approach²⁵ has been developed in the case law and takes into consideration factors such as:

the sustainability of employment;
the Applicant’s ability to engage in employment;
the Applicant’s abilities in a competitive marketplace;
the expectations of a reasonable employer; and,
the availability of suitable jobs in the Applicant’s geographical area.

On these factors, I offer the following views.

On sustainability of employment, the Applicant had a good, long work record with Abbott. No information was provided about problems or anything that might suggest that the Applicant would not be a solid employee for any other employer. Into the analysis of sustainability I add that the Applicant appears to be able to be managing her family as a single parent as well as finding part-time housekeeping situations as she needs additional money. This suggests to me that the Applicant is able to cope with many pressures and changes in schedule.

I agree that it may be difficult to find employment for the Applicant. However, it is not impossible. I note that many employers now seek to accommodate differently abled persons in employment situations which include work-at-home and job-sharing situations. The test is complete inability. I do not have to be literal; there are generally in the employment market positions available for those with different abilities.

In its submissions, the Applicant’s representative has suggested limited employment opportunities for the Applicant. However, as a high school graduate and someone who was on her way to an apprenticeship while working at Abbott, it is difficult for me to believe the Applicant has no skills or abilities whatsoever.

With respect to the Applicant’s competitiveness in the marketplace and the expectations of a reasonable employer, again, I have to point to the Applicant’s being able to cope as a single parent while also cleaning homes part-time. In this latter context, if employers had any concerns about the Applicant’s abilities to perform as a housekeeper, they would be highly unlikely to let her perform these duties in their own homes especially while accompanied by her youngest child.

On the issue of complete inability, the Applicant’s representative has suggested that her working part-time in cleaning homes is proof of her inability to work full-time. I have difficulty in accepting that. I have little information on what work the Applicant performed in cleaning homes. There is no information on names, numbers, rates or anything else other than the Applicant’s own testimony that it was part-time. Although I accept the Applicant’s testimony that she returned home from such work tired and in pain, I do not know what limitations that this would continue to cause for her on a full-time basis.

With respect to the availability of employment in the Ottawa area, no evidence was presented. However, it is not unreasonable for me to take arbitral notice of the fact that the economic conditions in Ottawa are at least as good as anywhere else in the Province of Ontario. It is certainly not a remote or otherwise economically depressed area where it might be difficult for the Applicant to find employment.

Finally, I must deal with Dr. Cheng’s opinions relating to the Applicant’s ability to work. I especially note the comments found at page 22 of his report.²⁶

At the top part of the page, Dr. Cheng states “In my physiatric opinion, Ms. Doxtater is substantially disabled from working in an area suited to her by means of education, training and experience…”.

As support for the proposition, Dr. Cheng does not base himself on his own observations and opinions but rather on the Applicant’s self-reports. For example “[the Applicant] indicates that the severity of her areas of pain, particularly in her neck, upper back and right shoulder, would cause her to be unable to perform any work duties at this time” and “[the Applicant] is pessimistic over her ability to maintain full-time work demands given her levels of pain, fatigue and difficulties with concentration, which she feels would greatly affect her ability to hold down any job.”

Only later do I read what I truly believe is an opinion that is within the competence of a physiatrist to give: “[the Applicant] cannot perform work activities involving continuous static postures of the upper body, repetitive lifting, reaching and twisting on a safe and competitive basis.”

I accept this. However, I cannot accept Dr. Cheng’s conclusion that this means that in the marketplace there is no occupation for the Applicant.

What I know as a fact is that despite the limitations identified by Dr. Cheng and Ms. Genereux, somehow the Applicant manages her single parent household. She also finds time to clean houses on some type of basis.

When I combine the foregoing with the facts that the Applicant has some but not totally disabling limitations, that she has a solid past employment record and a high school education, and that the Applicant was previously accommodated for a shoulder problem, it is difficult for me to come to the conclusion that there is no employment that she would be capable of doing. Her employment, training and experience suggest that she is not totally unable to find some employment in my opinion.

Based on this analysis, the Applicant is not entitled to post-104 week income replacement benefits.

I understand that the calculation of the Applicant’s entitlement to income replacement benefits may require an accounting and repayment of other income support program amounts that may have been received by the Applicant in addition to amounts that were already paid. My order acknowledges the need to for the proper deduction of these amounts.

The medical benefit

The last benefit being sought is massage treatment in the amount of $1,026.62 from February, 2015. The Insurer relied on an IME which in turn notes that as the Applicant had only received passive treatment for the year and a half following the MVA, it was not believed that further passive treatment would be of benefit.

In support of the amount being paid, the Applicant points to Dr. Cheng’s report.²⁷ In Dr. Cheng’s report, I note that massage (stated as clinic-based myofascial treatment) is only the third of seven recommended treatments in his report. I also note that the recommendation from Dr. Cheng is only in terms of “consideration should be given” and does not go into any discussion on why it was a necessary treatment.

I note that the Applicant did not provide any significant evidence on having received massage treatment or its impact on her health. On cross-examination the Applicant acknowledged that there was treatment that had been recommended that she did not seek out.

I accept the Insurer’s position that the massage treatment is not reasonable or necessary in the circumstances.

Special Award

Given that I have found some benefits in favour of the Applicant, should a special award be paid on these benefits?

I have decided that a special award is payable.

The information which the Insurer had about whether or not the Applicant could match the functions of the Abbott job made it clear that there were at least two functions that were not a job match. Page 9²⁸ of Ms. Nicholson’s report clearly shows this. The income replacement benefit should have been continued given the evidence that was presented to me.

Despite such clear evidence that she was unable to perform the duties of her pre-MVA employment, the Insurer’s log notes show a review of the Nicholson report on December 18, 2014 at 2:20 p.m. which refers to “consensus of … [assessors] that Claimant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment…” The log note further notes that the decision to terminate the income replacement benefit was then referred to a front line manager.²⁹

It was only on February 6, 2015 at 1:41 p.m. that the income replacement benefit stoppage is approved. A subsequent explanation of benefits terminated the income replacement benefits.³⁰

Given the log notes, I understand that the Insurer probably did not act on the Nicholson report alone; it likely also had the reports that I excluded as a preliminary matter which may have been to the contrary.

The test is whether or not the Insurer’s conduct was imprudent, stubborn and inflexible. In this case, I have no information to understand why Nicholson’s report would not prevail: it contained information that supported the Applicant’s entitlement to a pre-104 week income replacement benefit. Although there may have been other medical opinions, I do not understand how those medical opinions could have over-ruled the clear findings that on at least two tasks of the pre-MVA employment, the Applicant was unable to fully physically perform. This seems to me “imprudent, stubborn and inflexible”.

Accordingly, within the scale of sec 282(10) of the Insurance Act as it previously read, I must consider what amount is appropriate to award. The decision of the Insurer to terminate the benefit is unreasonable likely because of the exclusion of the evidence. However, as I have previously indicated, ensuring that an assessor will be available at the hearing is something that falls on the Insurer.

In setting the amount of the special award, I consider the Persofsky factors³¹ which are:

(i) the blameworthiness of the insurer’s conduct;

(ii) the vulnerability of the insured person;

(iii) the harm or potential harm directed at the insured person;

(iv) the need for deterrence;

(v) the advantage wrongfully gained by the insurer from the misconduct; and,

(vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

The Insurer’s conduct is only blameworthy on an ex post facto basis. At the time, the Insurer was likely acting reasonably. The injured person is not particularly vulnerable and the harm was minimal. There is no real need for deterrence and the outcome shows the Insurer’s advantage to be rather small although there are no other sanctions of the Insurer’s conduct likely.

When I consider the foregoing, I set a nominal amount for the special award of $1,000.

As a result of my decision to award a special award, interest is payable on any amount owing to the Applicant at the rate of two (2) percent per month compounded.

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

Marcel D. Mongeon Arbitrator

Date