Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 38

FSCO A15-006267

BETWEEN:

CASWELL BENNETT

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person at ADR Chambers on November 10 and 11, 2016

Appearances:

Ms. Hufriz Turel for Mr. Caswell Bennett

Mr. Jean-Claude Rioux for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Caswell Bennett, was injured in a motor vehicle accident on October 14, 2013 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Bennett, 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 amended.

The issues in this Hearing are:

Did Mr. Bennett sustain minor injuries within the meaning of the Minor Injury Guideline (“MIG”) ² and Schedule as a result of the accident?
Is Mr. Bennett entitled to attendant care benefits in the amount of $705.95 per month, from October 14, 2013 until July 13, 2014?
Is Mr. Bennett entitled to a cost of an examination for an attendant care needs assessment in the amount of $1,417.46?
Is Mr. Bennett entitled to interest for the overdue payment of benefits?
Is either party liable to pay expenses in respect of the Arbitration Hearing?

Result:

Mr. Bennett did sustain minor injuries within the meaning of the MIG and Schedule as a result of the accident.
Mr. Bennett is not entitled to attendant care benefits in the amount of $705.95 per month, from October 14, 2013 until July 13, 2014.
Mr. Bennett is not entitled to a cost of examination for an attendant care needs assessment in the amount of $1,417.46.
Mr. Bennett is not entitled to interest for the overdue payment of benefits.
State Farm is entitled to its expenses in respect of the Arbitration Hearing in the amount of $3,971.38.

EVIDENCE AND ANALYSIS:

MOTIONS

At the commencement of the Hearing, the Insurer put forward a Motion requesting that the Applicant’s Arbitration Brief not be allowed to be entered into evidence at this Hearing as it was served on the Insurer less than 24 hours prior to the start of the Hearing. In their defence, the Applicant’s counsel stated she was expecting this case to be resolved prior to the Hearing. When it became apparent the case was going forward and the Hearing was going to take place, it was at that time she put together the Arbitration Brief.

I ruled that according to the Dispute Resolution Practice Code (“DRPC”), all materials, including Arbitration Briefs, were to be served on opposing counsel a minimum of 30 days prior to the start of the Hearing, as per Rule 39.1. As a result, I used my discretion under Rule 39.3 of the DRPC and did not allow the Applicant’s Arbitration Brief to be entered into evidence.³

THE HEARING

Background

The Applicant was involved in a rear-end collision on October 14, 2013. He was wearing his seatbelt and no airbags deployed. No emergency services attended the scene and the Applicant proceeded to drive his car home which was close by. The car was eventually towed to an auto repair collision shop. The accident was reported to the police collision centre later on the day of the accident. The Applicant did not go to the hospital on the day of the accident, however he did see his family doctor the day after.

It was noted in the testimony that the Applicant was involved in a prior accident in 2011, where he suffered a fractured scapula.⁴ His injuries from the 2011 accident were healed by the time his second accident on October 14, 2013 occurred. The Applicant filed an Application for Arbitration for the accident that took place on October 14, 2013 on September 2, 2015.⁵

The onus is on the Applicant to prove entitlement to benefits. As stated by the Ontario Superior Court when it rendered its decision on Appeal for Scarlett v. Belair, the court ruled that the burden of proof rests on the Applicant to establish a right to recover under the terms of the policy.⁶ In the case heard before me, the Applicant must demonstrate that his injuries are more severe than the injuries that are defined as minor injuries⁷ in the MIG and Schedule. If the Applicant is unable to prove this, then by default, the Applicant’s injuries can be treated under the MIG in the Schedule.

The Applicant - Mr. Bennett

The Applicant testified on his own behalf. He stated that he is employed as a disc jockey and also works as a general labourer for a property restoration company. The Applicant testified that he only took 10 days off of work post-accident; when he returned, he was given light duties at the restoration company and with his disc jockey employment, he had assistance setting up the equipment. The Applicant stated that this accident affected his life and that in order to recover from his injuries, he sought treatment in the form of physiotherapy and also home based exercises.

The Applicant testified that his medical injuries were in his right shoulder and back. He confirmed there were no broken bones, tears in his tendons or joint damage. His injuries were soft tissue in nature. He stated in his Insurer’s assessment with Dr. Gharsaa that he had pain in his right shoulder, specifically in his trapezius muscle as well as his shoulder blade.⁸ The Applicant also testified that he required assistance with his personal care needs. Under cross-examination he stated that his attendant care service provider only attended to him periodically and only for a five-month duration.

His testimony was unusually brief and lasted less than 30 minutes. He was the only witness called to testify in relation to his injuries and his requirement for attendant care benefits. No other evidence was submitted.

Dr. Osama Gharsaa

Dr. Gharsaa conducted the Insurer’s Examination on the Applicant on March 12, 2014.⁹ Dr. Gharsaa is an expert in the area of soft tissue injuries and does anywhere between 50-100 assessments per week at his clinic. He testified that in his examination, he found that the Applicant’s injuries were treatable within the MIG. The Applicant scored a 5 out of 5 on the range of motion test that he administered, with a 1 out of 5 being someone who is paralyzed and 5 out of 5 as being the best score one could achieve in a range of motion test. Dr. Gharsaa stated that the Applicant told him about his pre-existing injury from his first accident; Dr. Gharsaa testified that those injuries would not affect the Applicant’s recovery from the soft tissue injuries sustained in the accident of October 14, 2013. The Applicant even confirmed to the doctor during the assessment that his injuries were 90% healed from the first accident.

When Dr. Gharsaa was asked specifically if the soft tissue injuries that the Applicant sustained on October 14, 2013 would require the assistance of a service provider for attendant care needs, Dr. Gharsaa said no, the Applicant’s injuries are not of the nature that would require attendant care assistance. Dr. Gharsaa’s report indicates the Applicant stated he was able to do everything on his own including showering, changing clothes and personal care without much of a problem.¹⁰

Ultimately, Dr. Gharsaa testified that in his expert opinion, the Applicant’s injuries fall within the parameters of the MIG.

MIG

Injuries that are considered “minor injuries” are considered to fall within the parameters of the MIG and are defined in section 3 of the Schedule:

A “minor injury” means one or more of a sprain, strain, whiplash associated disorder,

contusion, abrasion, laceration or subluxation and includes any clinically associated

sequelae to such an injury.

“Minor Injury Guideline” means a guideline, (a) that is issued by the Superintendent under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and

(b) that establishes a treatment framework in respect of one or more minor injuries.

The burden of proof falls on the Applicant to prove that his injuries do not fall within these parameters. Cases such as Scarlett v. Belair¹¹ and more recently, Shabbir v. State Farm,¹² the LAT decision by Adjudicator Theoharris, have confirmed this.

The Applicant did not provide medical evidence that would show that his injuries could not be treated within the MIG. Even though it wasn’t required, the Insurer provided evidence at the Hearing including the testimony of Dr. Gharsaa that the Applicant’s injuries that he suffered as a result of the October 14, 2013 accident are considered to be treatable within the MIG. Based on the evidence at the Hearing, the Applicant’s injuries are considered minor and are treatable within the parameters of the MIG.

Attendant Care Benefit and Attendant Care Assessment

I have determined that the Applicant’s injuries fall within the MIG. Only individuals whose injuries fall outside of the MIG can claim entitlement to attendant care benefits. Therefore, the Applicant is not entitled to attendant care benefits.

In the alternative, the Applicant failed to meet the onus of proof as it relates to entitlement to attendant care benefits. According to the Schedule, in order to claim attendant care benefits, an application for attendant care benefits for an insured person must be,

(a) in the form of and contain the information required to be provided in the version of the document entitled “Assessment of Attendant Care Needs” that is approved by the Superintendent for use in connection with the claim; and

(b) prepared and submitted to the insurer by an occupational therapist or a registered nurse. O. Reg. 34/10, s. 42 (1).¹³

At the Hearing, it was confirmed that the Applicant did not submit a Form 1 (Assessment of Attendant Care Needs). In addition, the Applicant also did not provide invoices from a service provider nor prove incurred loss by a lay person providing care. In short, if the Applicant would have been allowed by the legislation to claim attendant care benefits, he would not have met the threshold to prove entitlement.

The Applicant is not entitled to attendant care benefits and by extension, is not entitled to an attendant care needs assessment. The Insurer at no time led the Applicant to believe that his injuries were going to be treated outside of the MIG parameters. According to Section 14(2) of the Schedule, the only way for an Applicant to claim attendant care benefits and therefore require an attendant care assessment is for the Applicant’s injuries to be treated outside of the MIG.¹⁴ As stated in Scarlett v. Belair, liability for attendant care benefits only ever arises if the Applicant’s impairment is not a minor injury.¹⁵ Based on the evidence submitted at this Hearing, an assessment for attendant care benefits is not a reasonable and necessary expense.

CONCLUSION

The Applicant failed to meet the onus of proof to show that he was entitled to either of the benefits claimed. Based on the evidence at the Hearing, the Applicant failed to prove his injuries fell outside of the MIG. There was medical evidence and testimony submitted which showed that the Applicant achieved maximum medical improvement from his injuries caused by the accident on October 14, 2013. The Schedule is quite clear; the Applicant is not entitled to claim attendant care benefits if his injuries are considered within the MIG. Since the Applicant is prevented from claiming attendant care benefits, it was neither reasonable nor necessary for the Applicant to obtain an attendant care assessment. Therefore, the Applicant is not entitled to any of the benefits that are in dispute.

Interest for the Overdue Payment of Benefits

As no benefits are payable to the Applicant, no interest is payable.

EXPENSES:

The parties submitted their Bill of Costs at the conclusion of the Hearing. Since I have found in favour of the Insurer, the Insurer is entitled to its expenses. The Insurer provided a detailed billing of its costs. Based on the complexity and length of the Hearing, I found the Insurer’s costs to be reasonable. The Insurer submitted its legal fees for 14.3 hours at the rate of $150.00 per hour for a total of $2,145.00. I have adjusted this rate to comply with the Legal Aid Rate which is $136.43 per hour. Therefore, the amount owed for legal fees by the Applicant to the Insurer is $136.53 x 14.3 hours for a total of $1,952.38. In addition, the Insurer also submitted costs of $2,019.00 for disbursements and witnesses’ attendance, all of which are approved expenses. Therefore, I am awarding the Insurer costs of $3,971.38.00, all inclusive.

February 6, 2017

Jeff Musson

Arbitrator

Date