Brian Shaw v. TD General Insurance Company, 2017 ONFSCDRS 322

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 322

FSCO A15-007706

BETWEEN:

BRIAN SHAW

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Lynda Tanaka, Arbitrator

Heard:

In person at ADR Chambers on September 5, 6, 8, 11, 13 and 14, 2017

Appearances:

Mr. Brian Shaw, the Applicant, participated

Ms. Iman Ahsan, counsel for Mr. Brian Shaw

Mr. Terry Tustin and Mr. Nick Voight, counsel for TD General Insurance Company

Issues:

The Applicant, Brian Shaw (the “Applicant”), was injured in a motor vehicle accident on June 10, 2014 and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under 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 (“Act”).

The issues in this Hearing are:

1. Did the Applicant suffer a catastrophic impairment as a result of the motor vehicle accident of June 10, 2014?

2. Is the Applicant entitled to receive the following medical benefits:

a) an OCF-18 dated 2014-12-18 for treatment by Creative Therapy Health Services in the amount of $4,904.19; and

b) an OCF-18 dated 2015-05-25 by Total Hearing Centre for $300.00 being the balance of the amount claimed of $6,297.00?

3. Is the Applicant entitled to receive other benefits claimed as follows: $168.36 for prescription medications, and $1,289.51 for transportation expenses?

4. Is the Applicant entitled to attendant care for services provided by Qualicare over and above what has already been paid by TD?

5. Is the Applicant entitled to a special award because TD unreasonably withheld or delayed payment of any benefits?

6. Is either party entitled to expenses in respect of this Arbitration?

7. Is the Applicant entitled to interest for the overdue payment of benefits?

Result:

1. The Applicant did suffer a catastrophic impairment as a result of a motor vehicle accident of June 10, 2014.

2. The Applicant is entitled to receive the following medical benefits:

a) an OCF-18 dated 2014-12-18 for treatment by Creative Therapy Health Services in the amount of $4,904.19; and

b) an OCF-18 dated 2015-05-25 by Total Hearing Centre for $300.00 being the balance of the amount claimed $6,297.00.

3. The Applicant is entitled to receive other benefits claimed as follows: $168.36 for prescription medications, and $1,289.51 for transportation expenses.

4. The Applicant is entitled to attendant care benefits in the amount of $8,708.50 for services provided by Qualicare over and above what has already been paid by TD.

5. The Applicant is not entitled to a special award because TD unreasonably withheld or delayed payment of any benefits.

6. The Applicant is entitled to interest for the overdue payment of benefits.

7. 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, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 15 days of the date of this decision. The responding party shall serve and file its response within 7 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

EVIDENCE AND ANALYSIS:

Preliminary motions were brought by both parties at the outset of the Hearing.

The Applicant brought a motion to exclude the index and contents of the Insurer’s Brief for non-compliance with Rule 39. On July 28, 2017 TD delivered to the Applicant’s counsel its complete accident benefits file with over 3,000 pages of unbound documents with no list attached. On August 24 (less than 30 days prior to the Hearing), TD provided an index “regarding a joint brief”² which included all the documents that had been delivered on July 28, 2017. The Applicant immediately informed TD that he would be objecting to the materials listed in the index.³ At the outset of the Hearing, the Applicant filed written submissions and supporting cases for its motion. TD argued that it had specifically included a statement that the letter of July 28, 2017 was served in compliance with the Dispute Resolution Practice Code. TD complained that it had not had adequate opportunity to review the Applicant’s submissions on the motion prior to the Hearing and it wanted to put in written submissions.

I ruled that TD’s production was late and non-compliant with the requirements set out in the Pre-Hearing letter of August 11, 2016⁴ (“Pre-Hearing letter”), which specifically provided that production of documents was to be completed within 60 days of the Pre-Hearing. I refused to adjourn the Hearing to permit written submissions on the motion because TD had notice of the dispute concerning the documents and could have taken steps to identify the issues and try to resolve it. Therefore an adjournment to permit written submissions, which would inevitably delay the Hearing, was not appropriate. The reasons for my granting the motion that TD’s production was late were:

a) TD’s letter of July 28, 2017 did not truly disclose the documents that TD intended to rely on because TD described them as the documents that “may” be relied on. The letter of July 28, 2017 was an effort to cover up a failure to comply with the Pre-Hearing letter.

b) The disclosure of the 3,000 plus pages of unbound documents without an index was not satisfactory notice of the documents TD intended to rely on but was rather a “file dump” designed to make extra work for counsel for the Applicant in the two months preceding the Hearing without providing the clarity that disclosure is intended to achieve.

c) The complete accident benefits file likely contained at least some irrelevant documents (particularly as some issues had been resolved prior to the Hearing) and therefore the index and brief were inadmissible on the grounds of relevance.

d) TD did not argue that I should waive compliance as permitted under Rule 81.

e) The prejudice to TD by the enforcement of the Pre-Hearing requirements of production and order was mitigated to some extent by the fact that a book of documents including many of TD’s documents was provided by the Applicant from which the exhibits were drawn. Included in the exhibits were letters and other documents supporting TD’s position.

The Applicant brought a motion to have the expert reports and expert witnesses of TD excluded on the grounds of failure to provide the list of witnesses including experts TD wished to cross-examine in the time limit set by the Pre-Hearing Arbitrator, Mr. Musson. The Pre-Hearing letter provided that the list of witnesses and of experts to be cross-examined was to be produced 60 days prior to the Hearing. The list was provided just over 30 days prior to the Hearing. TD submitted that the sentence in the Pre-Hearing letter on which the Applicant was relying in fact contained an error. The Pre-Hearing letter provided:

The parties did not provide the names of their witnesses, although pursuant to Rule 33 one of the purposes of a Pre-Hearing is to identify the witnesses. The Dispute Resolution Practice Code provides that an arbitrator may excuse a witness from attending at the hearing, if the witness was not identified at the pre-hearing under Rule 33. It requires that the parties disclose to each other the names of the witnesses they intend to call to testify and the names of persons they require to attend for cross-examination on a report not less than sixty (60) days before the first day of the hearing.

TD correctly pointed out that Rule 33 in fact requires the disclosure 30 days, not 60 days, prior to the first day of the hearing.

I ruled that TD had not made disclosure of its witnesses in compliance with the requirements of the Pre-Hearing letter. The standard form letter was clearly modified by Arbitrator Musson to impose an earlier disclosure date, despite the ambiguity in the wording, and I would give effect to his deliberate intention to require disclosure earlier than the Rule 33 requirement. The 60 day disclosure ruling conforms to the usual practice in catastrophic impairment cases, where disclosure was usually required sooner than 30 days because of the volume of medical evidence and to allow opportunities for serious settlement discussions. Therefore TD was not permitted to call its expert witnesses or file its expert reports as exhibits in the Hearing.

In addition, at the outset of the Hearing there was a request by Travellers Insurance (the insurer of the driver who hit the Applicant) to have an observer attend the Hearing as there was a trial scheduled to begin shortly on the tort action which had been commenced as a result of the motor vehicle accident. The Applicant objected because the determination of the catastrophic impairment would have no bearing on the tort action and Mr. Shaw, by reason of the psychological impairments he suffered in the accident, would be unduly prejudiced by the presence of two opposing parties in this hearing room. The motion to have an observer attend was denied because of the prejudice to the Applicant and because the purpose of the attendance was primarily with respect to the outcome of this Hearing and that would not be available prior to the trial commencing.

The Law

The relevant provisions of the Schedule for the claim of catastrophic impairment is s. 2(1.2) (f) and the definition in s. 2(1) of “impairment”. The sections provide:

Section 2 (1.2)…

(f) Subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993,⁵ results in 55 per cent or more impairment of the whole person; …

Section 2 (1)

“impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function.

The AMA Guides are to be given a remedial, broad and liberal interpretation. The Schedule is remedial and inclusive, not restrictive, and constitutes consumer protection legislation, the goal of which is to reduce the economic dislocation and hardship of motor vehicle accident victims. The definition of “catastrophic impairment” is intended by the legislature to be inclusive and not restrictive.⁶

A determination of catastrophic impairment only permits an insured person to advance a claim but does not necessarily result in any compensation. The AMA Guides should not automatically bar a person who is seriously impaired from making further claims because of an unnecessarily restrictive or narrow interpretation of a guide to medical assessment designed for use in a different regime and at best provides only an estimate of the person’s level of impairment.⁷

Whether or not a person has sustained a catastrophic impairment, including all intermediate findings necessary to a final decision, is an adjudicative, not a medical determination.⁸ The determination therefore is based on all the evidence before the arbitrator and the onus lies on the Applicant on the balance of probabilities to prove the catastrophic impairment has been suffered.

The claims for benefits for attendant care are determined under s. 19 of the Schedule.

The claims for medical benefits and rehabilitation benefits are to be determined under Part III of the Schedule.

The entitlement to a special award is set out in s. 282(10) of the Insurance Act and it requires that an applicant first establish that the insurer has unreasonably withheld or delayed payments. It provides for recovery of up to 50 per cent of the amount to which the insured person was entitled at the time of the award (including unpaid interest on overdue payments) and recovery of interest on that total amount at an increased rate of interest.

It is well established that unreasonable in this section means excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour.

Evidence

The Applicant had a good quality of life before the accident. He lived in and looked after his own apartment, had a new girlfriend, and had the prospect of starting a new business in motorcycle repair with a friend as a partner. He had cared for his mother until her recent death. He spent his time as a retiree, meeting with friends and others with similar interests to his, volunteering in an organization he cared about, and riding his motorcycles regularly with the Canadian Army Veterans and others. He sold items on eBay to earn some cash. His hobby of restoring and maintaining motorcycles and cars required heavy lifting, as well as skill and concentration and he was in good enough physical condition at age 68 to fully engage in his hobbies. He had several motorcycles and a large volume of furniture and household belongings stored in a trailer following a recent move, which he intended to sort. He had a motor home where he spent time in the good weather between May and October. He was socially active. He was healthy and seldom took a pain killer or had a headache. He took prescription drugs only to control cholesterol and high blood pressure.

The motor vehicle accident occurred when the Applicant was struck from behind while he was riding his Harley Davidson motorcycle. He had stopped to make a left turn into a farm lane and was waiting for oncoming traffic to clear. The posted speed limit on the road was 80 km/h. The force of the collision threw the Applicant into the air. He landed on a car hood and came to rest on the ground. He lost consciousness but he has some recollection of some of the time before the ambulance came. His helmet was damaged in the collision. He suffered a broken ankle, a concussion and abrasions to various parts of his body. His elbows were injured so that he had difficulty using his crutches to keep weight off his broken ankle. He lost his hearing in his left ear for a period of weeks and he has continued to suffer from reduced hearing and tinnitus since the accident. His eyesight in his left eye was damaged. Three years after the accident and after various physical treatments, he continues to have headaches, neck and back pain, elbow pain, left leg and ankle pain. In addition to his hearing and eyesight impairments, he gets dizzy and uses a cane. He needs help with any heavy lifting.

He infrequently rides his motorcycles with the groups, as he no longer has the endurance to ride any distance. He has lost his motivation to volunteer, though he remains in contact with the organization and his friends there, though with less frequency than before. He now has more prescription drugs than he took prior to the accident. He says these additional prescription medications are required as sequelae to the impairments he suffered in the accident.

He has become moody, irritable and depressed and has taken and continues to take painkillers such as Tylenol 3 and Tylenol Extra Strength. For a period he took Aleve. He struggles with fatigue and became suicidal. He has a considerable amount of personal effects stored in a trailer that must be sorted, a task that remains incomplete. His occupational therapist testified that, during the home visits, she observed his considerable difficulties in maintaining appropriate emotional responses; in other words he became very angry and used inappropriate language. He continues to have difficulties sleeping properly and he frequently “takes a pass” when invited to social events because of his fatigue and pain. He finds it hard to focus and remember “stuff” such as appointments, and his personal care worker helps him keep his prescriptions in order. He used to do his own cooking but now he only uses the microwave.

The Applicant’s ongoing neck pain created problems for him in carrying out his daily activities, housekeeping and sleeping. To address this issue, the Applicant has undergone nerve block therapy. Dr. David L. Shulman testified that he is a pain management physician who sees patients with chronic pain. He recommends or will provide treatment including injections, medication, counselling and referral to other specialists. His clinical notes and records were filed as Exhibit 22, including his reports to the referring physician, Dr. Ko, following the nerve block therapy. He testified that, in his experience, 60% of neck pain comes from the facets of the cervical vertebrae located at the back of the neck and the injections provide temporary pain relief by freezing the nerves. The first injection was in January 2016 and a subsequent injection was given that summer. Both provided temporary relief, though for a period longer than was expected.

The Applicant testified that his impairments caused by the accident have presented a considerable challenge with respect to keeping his home and his papers, appointments and medication all in order. He cannot change his bed linen or do his laundry and he no longer cooks because of his fatigue, headaches and ongoing musculoskeletal pain. He needs help staying on top of his prescriptions refills, his food shopping, cleaning his apartment, etc. This evidence was corroborated by the occupational therapist, Ms. S. Martin Soosar. The personal care worker who comes for two and a half hours a week to assist him and, despite the lack of payment for attendant care services past the 104 week mark, she has continued to come at the Applicant’s expense.

The Applicant’s family doctor, Dr. Carol Gideon, testified that prior to the accident he was not a sick person and was not a frequent patient. He took medication for high blood pressure and cholesterol. After the accident the Applicant was anxious all the time, overwhelmed and stressed. She described the concussion as “big”. He was frustrated with the level of activities he now can do and by the length of time he was taking to recover. His quality of life changed a lot. He had difficulty concentrating and making decisions, and pain was a fact of life for him now. His anxiety led to shortness of breath. In 2015 he was on Lorazepam and then moved on to antidepressants because his being down and blue was “tipping into” treatable symptoms.

In February 2015 he lost vision in his right eye, part of the stroke continuum, and the family doctor therefore put him on Aspirin. Unbeknownst to her, he was already experiencing symptoms of gastro-intestinal bleeding. He subsequently ended up in emergency with intestinal bleeding. She testified that, while the duodenum did not have a big hole, the bleed could have killed him and he lost 4 pints of blood while the emergency doctor watched. She testified that Aleve is also a problem with such bleeding. He was in hospital for five days due to the blood loss he suffered through that bleed. His medications were adjusted to remove those associated with gastro-intestinal bleeding including the Aspirin and Aleve, until his gastro-intestinal system could recover.

Ms. Martin Soosar, an Occupational Therapist, completed the OCF-3s dated in December 2014 and in November 2016, as well as the Form 1 attendant care assessments done in June and December 2014 and in July 2015.⁹ Her clinical notes and records were filed as Exhibit 18. She saw the Applicant shortly after the accident and confirmed the injuries he described in his evidence. She testified that he had cognitive challenges in telling her about the accident and in staying on topic. She saw him from the accident time period until March 2017, first every two weeks and later at a reduced rate of meetings.

With respect to his mood and cognitive challenges, she is familiar with the basic cognitive testing methods but did not apply formal testing for him. He was very angry during the course of her meetings early on and became angrier as he grew tired and became in pain. He needed help changing bed linen, getting medications and carrying out basic housekeeping as well as cooking meals. His balance decreased on both the left and right side. In October 2014, he still suffered from frustration and pain and had difficulties with short-term memory. He would forget when his appointments were and then had quite challenging times trying to find the correct number to call and then record the information he got in the call. He was verbally abusive when he expressed frustration over filling out forms which she said is a hard task for someone with a concussion injury. With respect to the insurance claims he has had difficulty understanding all the forms and appointments, how to organize them, how to keep his calendar and knowing where he was going and why.

The Applicant would also raise his voice in anger and be verbally aggressive when he discussed pain levels with her. In his recovery he assumed greater responsibility for bathing and managing his medication overtime and she adjusted the nature of and amount of support he needed in the Form 1s and in her reports as his recovery proceeded. Because of his issues with pain and management of his daily activities, she added 60 minutes for assistance with management in the last Form 1.¹⁰ Cooking meals was a consistent challenge. She attempted to ensure that he had food and cooked nutritious meals but it was a challenge to manage that piece of his life, given his reduced tolerance for standing due to his pain.

By July 2015 his neck pain was better but his ankle got worse with activities. He still had headaches and ringing in his ears such that he would ask her to repeat what she said. He had problems with his vision and sleep. He would get sharp, searing pain in his elbows and his mood was bad.

In terms of his physical recovery, she observed him try not to use the cane in the house but he always had it outside and for his yoga class that was part of his therapy. She testified that he is now more dependent on it. She continued to assess him until March 2017. She was present when the occupational therapist came to assess him for the catastrophic impairment analysis and she said that the therapist had a lot of challenges in coping with his emotional dysregulation.

His sleep issues have been a consistent problem such that she moved her appointments to the afternoon, to avoid those difficult mornings when his sleep had been disrupted the previous night and his mood was therefore difficult.

Issue 1 – Did the Applicant suffer a catastrophic impairment as a result of the motor vehicle accident?

There was substantial agreement between the parties as to certain elements of the rating of the Whole Person Impairment (“WPI”) and characterization of the Applicant’s impairments under the definition of whole person impairments under the Schedule. Where the Applicant’s assessors determined that he was 55% impaired, TD’s assessors determined that he was 40% impaired. TD confined its response to the ratings to the ratings of mental impairment, headaches, sleep disturbance, prescription medication, and the impairment rating for the characterization of the Applicant’s use of a cane for mobility.

TD also complained that, where a range of percentages was given for the possible rating, the assessment for the Applicant consistently used the top of the range and that some of the assessors had not applied their medical judgment to determining the proper number within the range. The assessors deferred to the executive summary author and TD’s position is that that is improper and that those ranges cannot be relied on to reach the WPI. TD also takes the position that the ratings included an element of double counting.

Dr. Harold Becker testified as to the preparation of the Catastrophic Impairment Evaluation Report¹¹ and the Catastrophic Impairment Rebuttal Report¹² by Omega. The historical medical and other documents related to the Applicant’s injuries and impairments were reviewed by staff at Omega who prepared a File Review¹³ for the assessors. The individual assessments conducted at Omega were separately identified and included:

a) a Physiatry Evaluation by Dr. Lisa Becker MD, FRCP(C),¹⁴

b) a Neurological Evaluation by Dr. Dale Robinson, MD, FRCP(C),¹⁵

c) an Orthopaedic Evaluation by Dr. Taledin Yenus Getahun, MD, FRCSC,¹⁶

d) a Mental /Behavioural Assessment by Dr. Lara Davidson, PhD, CPsych,¹⁷

e) an Occupational Therapy Evaluation by Jane Wong, O.T. Reg. (ON),¹⁸ and

f) an Otolaryngology Evaluation by Dr. Mark Korman, MD, FRCSC.¹⁹

I was also provided with two Functional Oculo-Visual Reports²⁰ and a Hearing and Tinnitus Assessment.²¹ The various reports in support of the OCF-19 and WPI rating of 55% were provided to TD which retained its own assessors. As noted above, TD’s reports were not admissible but included in the Rebuttal Report is information concerning the conclusions of TD’s assessors (“Direct”). Each of the witnesses called by the Applicant testified about their review of Direct’s reports, the rationale for the differences between their assessment and that of Direct’s assessors, and whether or not their opinion changed in any way after that review. Omega made one change to the ratings based on an additional impairment rating given by Direct.

The differences between the findings of the two teams of assessors, Omega for the Applicant and Direct for TD, are as follows:

1. Under Medications, Omega gave a WPI rating of 3% and Direct gave no rating;

2. Under Lumbar Spine, Omega gave a WPI rating of 0% and Direct gave a rating of 5%;

3. Under Lower Extremities, Omega gave a WPI rating of 20% and Direct gave a rating of 15%;

4. Under Mental Status, Omega gave a WPI rating of 1-14% (using 14%) and Direct gave a rating of 0%;

5. Under Sleep Impairment, Omega gave a WPI rating of 1-9% (using 9%) and Direct gave a rating of 0%; and

6. Under Headaches, Omega gave a WPI rating of 3% and Direct gave a rating of 0%.

All other ratings of impairment were agreed numerically. As noted under item 2, Direct’s WPI rating of Lumbar Spine was greater than Omega’s so Omega included that rating in its final assessment. With respect to Mental and Behavioural Impairment, both assessments arrived at a 14% impairment but Omega diagnosed the Applicant with Features of an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Direct diagnosed him with a Somatic Symptoms Disorder. Under the Chapter 14 Rating, Omega found no Social Functioning impairment but Direct found a Mild (Class 2) impairment.

With respect to the inclusion of a WPI rating for Medications, both orthopaedic assessors at Omega and Direct and the Physiatrist at Omega, Dr. Lisa Becker, noted long-term use of Tylenol 3 and Extra Strength Tylenol on a consistent basis by the Applicant as a result of the injuries suffered. According to the Rebuttal Report, TD gave no rationale for failing to provide a rating for medication. The evidence of the family doctor corroborated that of the Applicant that, prior to the accident, he took prescription medication for limited purposes but that, since the accident, he has required prescription medication both for physical and mood impairments. The argument for excluding Medications is that they are directed to mitigate the impairments that are otherwise rated under the physical function. In this case there is ample support that the Medications are in and of themselves interfering with the functioning of the Applicant. First, there is the issue of the complications in his day to day activities of taking the medications when he should and ensuring he always has ample supply, something for which he has had to have personal care worker support. Second is the issue of the gastro-intestinal bleed.

A gastro-intestinal impairment was not identified and rated in the catastrophic impairment analysis. As noted above, in February 2016, the Applicant was taken to emergency with intestinal bleeding. The details of that visit are set out in the updated file review attached to Exhibit 26.²² TD objected to any evidence of an impairment rating being provided in evidence under the Gastro-intestinal Section of the AMA Guides as it had not been part of the original analysis and no notice had been given. Dr. Lisa Becker, in her Physiatry Evaluation, references the incident but did not have sufficient information at the time of her report. While no separate rating is given under this heading, I find that the information can be taken into account in corroborating the rating for medication and in assessing the extent to which medications that the Applicant has had to take to manage his impairments have interfered with his daily activities or compromised his health otherwise. The evidence of the family doctor corroborated that of the Applicant that his injuries have led to his being prescribed significant medications, some of which have had adverse impacts on his gastro-intestinal system, as evidenced by their being discontinued while that system healed.

I therefore find that there should be a rating for Medications and I accept the Omega rating of 3% as appropriate.

The Orthopaedic Evaluation, which was the basis of the rating for Lower Extremities, was conducted by Dr. Tajedin Getahun who testified as to his examination of the Applicant and his rating under the AMA Guides. The Applicant complained of pain in his right ankle, right elbow, neck pain and low back pain. The ankle pain is described as throbbing pain which is aggravated with activities. The Applicant feels the ankle is stiff and weak. The tests by Dr. Getahun indicated normal strength in the lower extremities, but he concluded that under the AMA Guides he should give a rating for gait derangement.

With respect to the use of a cane as a mobility device, the AMA Guides provide a distinction between part-time use, routine use and constant use. Part-time use is classified as “Mild” and is appropriate when the cane is used for distance but not usually at home or at work. The use is intermittent. The rating is 15% for Mild and that was the basis of the rating by Direct. The Moderate classification is based on routine use of the cane where the person requires the cane regularly, when the cane is part of the usual habit of the person, and the rating is 20%. Constant use is appropriate when the patient is dependent on the cane for any mobility. The issue is whether the Applicant’s use of the cane is sufficient to meet the requirements of routine use of a cane or a 20% rating or is a Mild or part-time use for which the rating should be 15%.

Dr. Getahun testified that in his view, the Applicant used the cane on a regular basis. Dr. Getahun testified that the cane is used as an assistive device for security and as a load sharing device so people can tolerate the weight-bearing on their lower limbs with part of the weight on the cane. He testified that, in his experience, people use a cane when they are away from home or work in locations where they do not feel secure. If people feel secure from falls, they will not use the cane. He drew a distinction by comparing the use of glasses; he has glasses himself but he does not use them all the time even though he has an impairment which makes him dependent on the glasses in certain circumstances. He testified that in his experience about 15% of his patients show up for their appointments without their cane and those he classifies as people using a cane on a part-time basis (not on a routine basis). They tell him they have left the cane in the car when they came to the appointment to see him or left it at home. He testified that people who routinely use a cane will have it when they come to an appointment but they will not use it in their homes because they feel safe in their home; they minimize the danger of falling by staying close to furniture or counters or railings and grab bars when they move around their home. These surfaces will provide them with support and security instead of the cane. Routine use includes regularly using the cane when outside the home where uneven surfaces will pose a danger of a fall.

The Applicant testified that he started using a cane because of the broken ankle and he was encouraged to gradually lessen his use of the cane, thereby increasing weight-bearing on the injured ankle (presumably to strengthen it). He suffers from tinnitus and gets dizzy. He needs the cane, especially in winter and even though the pain in his elbows discourages him from using it. He also finds that his leg will start to hurt when he gets tired and using the cane will prevent that pain or cause it to be less than if he does not use the cane. There is, in his mind, a fundamental unfairness in penalizing him for trying to use the cane less when that is what his health care providers wanted him to do. Three years later, however, he still needs and uses the cane.

I also have the evidence of Ms. Martin Soosar and her reports and notes of her observations of the Applicant and his recovery from the accident in June 2014 to March 2017, in which she documents his use or lack of use of the cane in various situations. Ms. Jane Wong, OT, set out her observations of the Applicant in her Occupational Therapy Assessment. These also provide insight into the Applicant’s mobility challenges, both within and outside his home.

TD points out that, at his mobile home, the Applicant is able to do some gardening and mow the lawn on his own and that this is inconsistent with the need for the cane or its characterization as routine use.

Based on all the evidence, I find the Applicant’s use of his cane falls within the routine use requirement and is properly rated as Moderate and not Mild. He uses the cane to avoid or minimize pain due to fatigue and weight-bearing on his ankle and to provide security. I do not agree with TD that I should find that his use is Mild because he does the gardening and mowing the lawn without the cane but with the mower acting itself as a support he can hold on to. I find that this practice is consistent with the safe home environment. The ongoing impairments of hearing loss, dizziness, eyesight issues, headaches and pain in back and his lower limbs all could reasonably cause the Applicant insecurity when he is going outside or when he is uncertain or worried about uneven or slippery surfaces.

With respect to the WPI rating for Mental Status, Sleep Impairment, and Headaches, Dr. Robinson testified with respect to the neurology assessment in Exhibit 28 which formed the basis of the ratings. In his original report, the impairments assessed included the dizziness that included ringing in the Applicant’s ears and his deafness, as well as his vision difficulties since the accident. The Applicant has headaches three times per week associated with a feeling of being out of sorts. The Applicant has multiple cognitive complaints: he cannot follow what he is reading whether in manuals for fixing the parts of a motorcycle or car or other reading; he gets confused following the story line in movies and television shows, though he is helped by subtitles. He also gets confused with respect to his prescription medication and he has difficulty focussing. He now avoids multi-tasking and is slower in making decisions. He has difficulty prioritizing tasks and repeatedly checks on the stove or whether he closed the door. He continues to be short-tempered and, in addition to the pain from his physical impairments, he has difficulty sleeping. He complained that pain would wake him up at night but there were also times when he woke up for no reason. He uses a written calendar for reminders.

In the course of the testing Dr. Robinson observed that the Applicant could do some tandem walking but he flailed his arms a bit during that test.

Dr. Robinson concluded the Applicant has a mild to moderate traumatic brain injury with post-concussion syndrome with headaches, dizziness and altered sleep, cognitive issues and the altered mood including impatience, depression and anxiety. Dr. Robinson concluded that the Applicant’s recovery had plateaued and that he had rateable impairments for Mental Status. In his view the headaches are significant enough to impact the activities of daily living and should be rated as permanent impairment.

TD challenged the inclusion of ratings for Headaches, Sleep Impairment and Mental Status. The Applicant testified as to his sleep disturbance which he attributed to both worry and to pain. He also testified as to his confusion and cognitive challenges since the accident and to his headaches which in fact played a role in the process of the Hearing. I find that Dr. Robinson’s analysis that the Applicant’s injuries fall within the second tier under Mental Status is well supported on the evidence, as is his determination that the headaches are not transient and therefore should be separately rated.

His considered judgment was that the neuropsychologist retained by TD had erred in finding abnormalities in mental status but had not provided any rating or diagnosis and in giving no rating for Sleep Impairment even though the Applicant testified to very limited sleep per night.²³

TD argued that Dr. Robinson did not have the qualifications as a neurologist to come to different conclusions than the neuropsychologist retained by TD. Indeed Dr. Robinson acknowledged that he was not a neuropsychologist and that someone with such expertise could provide useful information. In the end, he chose in his rebuttal analysis to disagree with the neuropsychologist. When cross-examined on this point Dr. Robinson testified as to the reasons why he continued to hold to his original position and I accept his justifications as valid exercises of the judgement of an expert in neurology.

Dr. Robinson noted that the neuropsychologist at Direct had determined that she identified altered attention and focus but found that the impairment did not warrant a diagnosis or rating even though there were clearly abnormalities. Dr. Robinson said he could not agree with that conclusion. He distinguished between the cognitive impairments and the psychological impairments. Dr. Robinson testified that the lack of rating for sleep disturbance and arousal (Sleep Impairment) by Direct was not fair to the Applicant, given the 2 to 3 hours of sleep he was getting per night. In his view, there were many examples of disruption of the Applicant’s activities of daily living due to the cognitive impairments suffered by the Applicant.

I accept the opinion of Dr. Robinson. His assessment of the cognitive challenges facing the Applicant in his daily living is consistent with the evidence of the family doctor, the evidence of Ms. Martin Soosar which covered almost three years of interaction, the observations of Ms. Wong in her evaluation in 2016, and the evidence of the Applicant, as well as my observations of the Applicant during his evidence. As a witness, the Applicant clearly had trouble remaining focused, even during the course of a single answer to a question. His presentation made his inability to manage his medication and to keep his appointments organized perfectly credible. His voice became noticeably quieter and his words slower closer to the end of an answer than when he started his answer, and he appeared to tire visibly over the course of an answer. While the Applicant has only a high school education, he has earned a living in industry during his life and clearly had skills in administration, in use of computers, and in machines and mechanics prior to the accident. He has lived life vigorously and with a strong sense of community, and there remain indications that he tries to do that with limited success due to his impairments which clearly affect his overall strength, appearance and engagement. It was necessary to take a break during his evidence because of his headaches and he appeared fatigued often. It was necessary to provide information to him from time to time over and above what witnesses normally require so that they are oriented to the people in the Arbitration room and the expectations of them as witnesses. When the issue of taking prescription medication came up, he would answer the questions and then become distracted. The Applicant’s tangential thinking was observed by Ms. Wong in her occupational therapy evaluation and his presentation in the Hearing confirmed that this is a difficulty he continues to experience.

With respect to the rating of the Applicant’s sleep disturbances, I accept the evidence of Omega’s assessors that there is a difference between waking up because of pain and waking up for another reason in pain and the Applicant’s evidence satisfies me that both play a role in his sleep disturbance. TD relies heavily on a statement recorded in one of the assessments that the Applicant was not worried about his inability to sleep because he is retired. The evidence of Ms. Martin Soosar is that the Applicant was very worried about his disturbed sleep and lack of sleep, his waking up in the night in pain and sometimes because of the pain. The evidence is clear that he connects his lack of sleep to his lack of physical stamina and his inability to be focused and engaged. He cannot enjoy his reading or TV or movies and being with his friends because he is fighting fatigue. The evidence supports the conclusion of Omega that it is appropriate to provide a separate rating for sleep disturbance in this case.

Therefore I find that the ratings in the Neurology Assessment as reflected in the Executive Summary are appropriate and reflect the evidence of the impairments as observed by other witnesses as well as the evidence of the Applicant.

I also accept the ratings provided by Omega in the summary prepared by the executive author, Dr. Harold Becker. TD challenged the fact that where Dr. Robinson or other assessors provided a range of percentages drawn from the interpretation of the AMA Guidelines, Dr. Becker used the highest percentage in the range.

TD alleged that the ratings flowed not from a proper assessment but rather from an arbitrary choice arising from Dr. Becker’s desire to avoid past criticisms of his ratings in appeals concerning his catastrophic impairment assessments. TD referred to the decision of Adjudicator Susan Sapin in Applicant and Peel Mutual Insurance Company²⁴ in which Adjudicator Sapin held that for an assessor to simply assign a range, or to arbitrarily choose the highest number in the range on principle, is to abdicate the exercise of clinical judgement required under the AMA Guides and that providing a range is not helpful to adjudicators. She referred to another arbitration case in which an arbitrator rejected the use of ranges of impairment because of the direction in the AMA Guides to use clinical observation, training, judgment, experience, skill and thoroughness of evaluation to derive as precise a rating for an impairment as possible.²⁵

Dr. Becker explained that he used the top number in the range to capture the fact that the impairments were variable and that it was appropriate to give any benefit of dispute as to the appropriate range to the impaired party. He testified as to the difficulties facing medical doctors in applying numbers, where there is discretion given throughout the AMA Guide.

The parties provided me with cases on catastrophic impairment and the difficulties facing arbitrators by reason of the Schedule’s dependence on the application of the AMA Guides is reflected in those decisions. The cases establish that the determination of the impairment ratings is a matter of adjudication to be based on the evidence as a whole, including that of the assessors whose clinical knowledge and expertise is applied to diagnose the impairments and correctly apply the AMA Guides to the individual. The arbitrator is obliged to assess the evidence of the experts and all the evidence in the hearing and make determinations under the statutory scheme, having in mind the underlying principles of interpretation of accident benefit statutory provisions.

I am satisfied that each of the assessors has applied their clinical judgment, skill, knowledge and expertise to the task in accordance with the AMA Guides. Further, I am satisfied that Dr. Becker is an expert in the application of the AMA Guides and that he has reviewed with a critical eye the assessments done by all the assessors in the course of preparing his executive summary and the Rebuttal Report. I am satisfied that he has applied his best judgment to the issue of the impairments within the structure of the AMA Guides. Dr. Robinson testified that in assessing which number to use within a range the factors are the severity, frequency and persistence of the impairments and that within the Mental Status and Sleep and Arousal impairments, these will fluctuate. On the evidence taken as a whole, I agree with Dr. Becker that the resolution of the issue of what specific number to use for rating the impairments is satisfied on the evidence in this case with use of the highest number in the range.

I do not attribute anything improper in Dr. Becker’s explicit efforts to comply with the statutory scheme and the direction given in the legislation and by the courts on the appropriate application of the AMA Guides to any specific fact situation.

Further, I accept his evidence and that of the other assessors at Omega that the opinions provided by Direct have been reviewed with a view to their determining of whether or not, in the face of this new information, they should change their opinions.

Issue 2 – Is the Applicant entitled to receive medical benefits a) as per an OCF-18 dated 2014-12-18 for treatment by Creative Therapy Health Services in the amount of $4,904.19;²⁶ and b) as per an OCF-18 dated 2015-05-25 by Total Hearing Centre for $300.00 being the balance of the amount claimed $6,297.00?²⁷

The Applicant has used the $50,000 in available treatment provided under the policy unless he is catastrophically impaired. I have found that he is and, therefore, the issue becomes whether or not the treatment plans are reasonable and necessary.

TD attacks the treatment plan by Creative Therapy Health Services on the basis that Ms. Martin Soosar is not properly qualified to put forward the OCF-18 for proof they should be approved. The treatment plan is for therapy to be provided by an identified massage therapist for improved performance in daily activities. What is proposed is that the Applicant be provided with supervision, support, appropriate prompting and instruction to facilitate rehabilitation objectives as directed by the hearth care team. The goal is to assist the Applicant with organization of trailers on his property and vehicles on the property, eye exercises, time management strategies and physiotherapy goals. There is no issue that the time management strategies, eye exercises and physiotherapy goals all fall within the usual treatment for rehabilitation. Assisting the Applicant to organize his trailer is not a common form of therapy, but the evidence is that the trailer and the lack of organization of his belongings in it are disturbing to the Applicant. The inability to function as he did is part of his mood problems which have in the past crossed over into treatable depression. The trailer and contents present a cognitive challenge as well as a physical challenge and the failure to get this resolved is because of his impairments. While unusual, I find that the OCF-18 sets out a reasonable and necessary course of treatment and therefore is approved.

With respect to the $300 remaining on the OCF-18 (Exhibit 7) for the hearing aids, TD has refused to pay the expense when there was a balance in the $50,000 cap under the policy because the provider did not use HCAI. It was within TD’s discretion to waive that requirement but it refused. Because of the finding on the catastrophic impairment, the $50,000 cap is no longer relevant and I find this expense is reasonable and necessary due to the injuries and sequelae suffered in the accident. TD is therefore liable for the amount of this benefit.

Issue 3 – Is the Applicant entitled to receive other benefits claimed as follows: $168.36 for prescription medications, and $1,289.51 for transportation expenses?

Ms. Taisha Williams, a claims advisor responsible for the day to day handling of the Applicant’s file, testified with respect to this claim. With respect to transportation expenses, TD received three OCF-6 forms with respect to this claim²⁸ as well as invoices.²⁹ She testified that TD paid two invoices totalling $1,029.07 with respect to Bell City Cabs for transportation for the Applicant and she was unaware as to why no further payments were made in this regard.

She also testified that TD received an OCF-6 for prescription expenses dated March 15, 2016.³⁰ TD requested further medical documentation which was received in the form of a doctor’s note April 16, 2015 and a letter from counsel for the Applicant August 6, 2015.³¹ She was unaware as to why TD provided no response to this information.

TD challenges the expenses on the basis that the $50,000 cap under the policy has been reached. In view of my finding that the Applicant is catastrophically impaired, these invoices should be paid.

Issue 4 – Is the Applicant entitled to any further benefits for attendant care for services provided by Qualicare over and above what has already been paid by TD?

TD denied payment for attendant care services when the services continued 104 weeks after the accident. In a letter dated November 15, 2016, TD advised the Applicant that he was no longer entitled to the benefit because his injuries were a non-catastrophic impairment.³²

In closing submissions, TD took the position that the Applicant must establish that the services being provided are of the type that are encompassed within attendant care. There is no letter in this record in which TD advised the Applicant of this position.

The record includes analysis of the Applicant’s attendant care needs as set out in an OCF-6 for attendant care³³ and three reviews of the Applicant’s attendant care needs in the form of a Form 1 and supporting report.³⁴ In addition, the record includes Ms. Wong’s evaluation of his functioning. Invoices from Qualicare Inc. to support the claim proving expenses incurred were provided in Exhibits 12 and 13 and TD provided a summary of what has been paid for attendant care.³⁵

Ms. Taisha Williams testified that the benefits claimed in Exhibit 14, the first Form 1 were paid. An independent assessment was required when the second Form 1 was received (Exhibit 15). A further independent assessment was required when the third Form 1 was received (Exhibit 16) and the amount of the benefit was increased from the amount paid under the second Form 1 Exhibit 15. The benefits were stopped when the 104 week period was reached.

TD objects to the expense as not properly proven in that no witness who actually provided the service was called and the Applicant was unable to give time estimates of how long each of the identified services took. The personal care worker comes once a week for a little over three hours and, according to the Applicant, accomplishes a lot in that period. The last Form 1 identified needs for assistance with the bedroom linen change and the bathroom cleaning and support with cooking as well as support for some aspects of personal care and support for management of appointments, etc.

The Applicant has been clear that the personal care worker is supportive of various aspects of his carrying on his daily activities. The cross-examination of the Applicant asked him to estimate the time spent on individual tasks and it was clear that he was taken by surprise and was not prepared to address the questions of time on specific tasks. The exhibits include the invoices issued monthly and cover the period from June 2016 to June 1, 2017. TD has exercised its right for an independent assessment on receipt of the Form 1 dated July 16, 2015.³⁶ The independent assessment was in November 2015 and TD sent a letter dated January 25, 2016 to the Applicant approving the attendant care “[T]o support with the more demanding tasks in his day such as preparing meals, bathroom and bedroom hygiene tasks and ensuring his overall daily safety and security”.³⁷

There is nothing in the record before me that TD objected to the attendant care invoices because of the lack of detailed records or information breaking down the time spent on individual tasks. I have reviewed the evidence of the Applicant on the tasks that the personal care worker did and the analysis of his needs provided by Ms. Martin Soosar in her evidence and reports. The only information the Applicant could not give was a detailed breakdown of the time spent by the personal care worker each day on each of the tasks. The apartment is a one bedroom as described in the occupational therapists’ reports in the evidence. The Applicant’s testimony satisfies the onus to prove that the tasks performed by the personal care worker fall within the description set out in the applications for attendant care and the approval letter of January 25, 2016. The fact that the personal care worker did not prepare meals on each visit or that the visits are no longer daily but rather weekly does not detract from the compliance with the intent of the attendant care calculated in accordance with TD’s own assessment.

I have been provided with four OCF-6s for the period June 1, 2016 to June 1, 2017,³⁸ together with the supporting invoices,³⁹ totalling $7,525.19. I have also been provided with invoices for services provided between March 30 and June 1, 2016 which total $1,183.31.⁴⁰ There is also an invoice dated 7/5/2016 included in Exhibit 13 in the amount of $83.80 for financing charges because payment was not made for the invoices. TD is therefore liable for the attendant care services as invoiced.

Issue 5 – Is the Applicant entitled to a special award because TD unreasonably withheld or delayed payment of any benefits?

The Applicant has the onus on the balance of probabilities to prove his entitlement to a special award.

The Applicant submits he is entitled to a special award because expense claims and treatment plans were submitted to TD and were not addressed. Ms. Williams’ evidence confirmed that she did not know why the claims for certain benefits (attendant care as set out in Exhibit 11 for instance) were not responded to, despite the Applicant providing additional information as requested (see the correspondence in Exhibits 53 and 54). Also TD failed to deal with the Rebuttal Report Exhibit 26.

TD opposes the special award, taking the position that if a medical report is sent to counsel it is somehow shielded from being the subject of adjustment by an insurer. This position cannot be sustained as counsel is required under their professional obligations to communicate only with an opposing party’s counsel once counsel is identified as retained. Therefore, the Rebuttal Report had to be sent to counsel. The fact that TD’s counsel is in-house counsel does not alter the situation; if anything it makes the obligation to adjust the claim with the new information clearer.

TD owes the Applicant a duty of good faith. The duty is broad and includes treating the insured in a fair manner and conducting a reasonable investigation of the information presented to it, including new medical information. Communication with the Applicant is an essential part of fulfilling that duty of good faith and the Schedule provides for time limits and requirements in that regard.

TD was wrong not to respond to the additional information and to the benefit claims. It may have made a mistake in deciding not to send the Rebuttal Report to its assessors for review. Being wrong in failing to respond or in choosing not to have a report reviewed is different than being unreasonable as it is used in the legislation. I find that the factual basis of this case does not support a finding of conduct that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour. The failure to communicate is sloppy and ineffective and I do not condone the failure of TD to communicate, but TD’s refusal of benefits is based on its own assessors’ views of the catastrophic impairment. TD is entitled to rely on its own assessors. Therefore I dismiss the claim by the Applicant for a special award.

Issue 6 – Is TD liable to pay to the Applicant interest on overdue payment of benefits?

TD is liable to pay the Applicant interest on overdue payment of 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, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 15 days of the date of this decision. The responding party shall serve and file its response within 7 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

November 30, 2017

Lynda Tanaka Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 322

FSCO A15-007706

BETWEEN:

BRIAN SHAW

Applicant

and

TD GENERAL INSURANCE 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 (“Act”), it is ordered that:

1. The Applicant did suffer a catastrophic impairment as a result of a motor vehicle accident of June 10, 2014.

2. The Applicant is entitled to receive the following medical benefits:

a) an OCF-18 dated 2014-12-18 for treatment by Creative Therapy Health Services in the amount of $4,904.19; and

b) an OCF-18 dated 2015-05-25 by Total Hearing Centre for $300.00 being the balance of the amount claimed $6,297.00.

3. The Applicant is entitled to receive other benefits claimed as follows: $168.36 for prescription medications, and $1,289.51 for transportation expenses.

4. The Applicant is entitled to attendant care benefits in the amount of $8,708.50 for services provided by Qualicare over and above what has already been paid by TD.

5. The Applicant is not entitled to a special award because TD unreasonably withheld or delayed payment of any benefits.

6. The Applicant is entitled to interest for the overdue payment of benefits.

7. 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, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 15 days of the date of this decision. The responding party shall serve and file its response within 7 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

November 30, 2017

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 4, letter from TD to Mazin & Associates PC, August 24, 2017.
3. 3Exhibit 2, letter from Mazin & Associates PC to TD, August 24, 2017.
4. 4Exhibit 5, p. 2.
5. 5“AMA Guides”.
6. 6Allen and Security National Insurance, Appeal P15-00018, Delegate Lawrence Blackman July 6, 2016 at p. 12.
7. 7Ibid. at p. 13, citing Arbitrator Richard Feldman in Jaggernauth and Economical Mutual Insurance Company (FSCO A08-001413, December 20, 2010).
8. 8Ibid. at p. 13.
9. 9Exhibits 14, 15 and 16.
10. 10Exhibit 16.
11. 11Exhibit 25, June 10, 2016 (“CAT Report”).
12. 12Exhibit 26, March 13, 2017 (“Rebuttal Report”).
13. 13Exhibit 24.
14. 14Exhibit 27, April 19, 2016.
15. 15Exhibit 28, May 2, 2016.
16. 16Exhibit 29, April 26, 2016.
17. 17Exhibit 21, May 16, 2016.
18. 18Exhibit 20, May 24, 2016.
19. 19Exhibit 30, May 3, 2016.
20. 20Exhibit 35, report dated November 7, 2014 and Exhibit 36, report dated March 16, 2016.
21. 21Exhibit 36 July 18, 2016.
22. 22At p. 19 of 47.
23. 23I also note the evidence of Ms. Martin Soosar of the need to move appointments to the afternoon rather than the morning because of the Applicant’s sleep difficulties.
24. 24LAT Tribunal #16-000013/AABS.
25. 25Ibid. at p. 7, citing Moser and Guarantee Company of North America [FSCO A13-000812], September 26, 2014.
26. 26Exhibit 6.
27. 27Exhibit 7.
28. 28Exhibit 10.
29. 29Exhibit 9.
30. 30Exhibit 8.
31. 31Exhibit 50.
32. 32Exhibit 55.
33. 33Exhibit 11 dated July 7, 2016, August 10, 2016, September 8, 2016 and June 13, 2017.
34. 34Exhibit 14, Form 1 dated 2014/06/27 and Report dated 2014/06/27; Exhibit 15, Form 1 dated 2014/10/30 and Report dated 2014/10/23; and Exhibit 16, Form 1 dated 2015/07/16 and Report dated 2015/07/17.
35. 35Exhibit 46.
36. 36Exhibit 63, letter TD to the Applicant.
37. 37Exhibit 65, p. 1.
38. 38Exhibit 11.
39. 39Exhibit 12.
40. 40Exhibit 13.