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

Neutral Citation: 2018 ONFSCDRS 17

FSCO A12-006873

BETWEEN:

ROBERT MACLEOD

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

DECISION

Before:

Arbitrator Anne Morris

Heard:

In person at Brantford on September 26, 27, 28, 29, 2017 and at ADR Chambers on October 20, 2017, and by written submissions completed on November 17, 2017

Appearances:

Mr. Luke Hamer, Mr. Chris Jackson, and Ms. Caroline Targan for Mr. MacLeod

Mr. Jamie Pollack, Ms. Nicole Dowling, and Ms. Stacey Morrow for Coachman Insurance Company

Issues:

The Applicant, Mr. MacLeod, was injured in a motor vehicle accident on September 13, 2010 and sought accident benefits from Coachman Insurance Company (“Coachman”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. MacLeod, 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 Arbitration are:

1. Is Mr. MacLeod entitled to receive a non-earner benefit in the amount of $185.00 from March 14, 2011 to date and ongoing?

2. Is Mr. MacLeod entitled to attendant care benefits as follows:

a. From September 13, 2010 to October 25, 2010 in the amount of $673.51 per month;

b. From October 26, 2010 to September 25, 2012 in the amount of $361.22 per month;

c. From September 26, 2012 to date to February 4, 2016, in the amount of $815.56 per month;

d. From February 5, 2016 to date and ongoing in the amount of $6,000.00 per month?

3. Is Mr. MacLeod entitled to payments for housekeeping and home maintenance services?

4. Is Coachman liable to pay a special award because it unreasonably withheld or delayed payments to Mr. MacLeod?

5. Is Mr. MacLeod entitled to interest for the overdue payment of benefits?

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

Result:

1. Mr. MacLeod is entitled to receive a non-earner benefit in the amount of $185.00 per week from 26 weeks post-accident to date and ongoing.

2. Mr. MacLeod is entitled to housekeeping and home maintenance services at the rate of $45.00 per week from September 13, 2010 to August 31, 2012 and at the rate of $90.00 per week from September 1, 2012 to date and ongoing.

3. Mr. MacLeod is entitled to attendant care benefits, over and above what has already been paid by Coachman, in the amount of $673.51 per month from September 13, 2010 to December 13, 2010 and $361.22 per month from December 14, 2010 to August 14, 2012.

4. Coachman is not liable to pay a special award.

5. Mr. MacLeod is entitled to interest for the overdue payment of benefits in accordance with the Schedule.

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

EVIDENCE AND ANALYSIS:

Background

This now 56-year-old man was involved in a very serious head-on collision on September 13, 2010 when he was 49 years old. He has no memory of the accident but a review of the evidence shows that he had to be extricated from the vehicle. His GCS² was 13 to 14 initially on arrival at the Brantford General Hospital. He subsequently decreased his GCS and became combative, requiring intubation. Intubated, he had a GCS of 3.³ He was transferred to Hamilton General Hospital and the Discharge Summary from that hospital, dated September 20, 2010, lists his injuries as follows:⁴

1. Small subarachnoid hemorrhage, non-operative intervention.

2. L1 compression fracture, non-operative intervention.

3. Minor facial fractures, non-operative intervention.

4. Minor acquired brain injury, for which the patient will be followed up by Acquired Brain Injury Program as an outpatient.

The Applicant applied for a catastrophic impairment (CAT) determination based on his GCS score and the Insurer determined that he was catastrophically impaired following a paper review of the CAT application by a Dr. S. Levy. Dr. Levy concluded that “from a medical perspective, Mr. MacLeod does meet the definition of Catastrophic Impairment as defined by the SABS… We conclude that in the absence of intubation the client’s GCS would have dropped below 9 based upon the brain injury characteristic evident on the CT scan.”⁵

The Applicant was not employed at the time of the accident. It is not disputed that he has been in receipt of Ontario Disability Support Payments for most of his adult life. He has a learning disability and is functionally illiterate.

The Insurer denied non-earner benefits following Insurer’s Examinations on the basis that the Applicant did not suffer a complete inability to carry on a normal life as a result of the accident within the meaning of the Schedule.⁶

The Insurer paid some attendant care benefits claims and denied others on the basis that the expenses for these benefits were not incurred within the meaning of the Schedule, and/or on the basis that the quantum claimed was greater than what was reasonable and necessary as determined by the Insurer. The Insurer paid claims for attendant care services provided by professional service providers but not those provided by friends or family. The Insurer submitted that there was no or insufficient proof of economic loss by friends or family in providing services. The Insurer submitted with respect to professional service providers that the quantum of benefits claimed was less than what the Insurer considered reasonable and necessary and would have paid had they been provided.

The Insurer denied all claims for housekeeping benefits on the basis that they were provided by non-professionals with no or insufficient proof of economic loss by the service providers. The Insurer also denied that the Applicant met the disability test for housekeeping benefits following insurer examinations.

The Applicant has been provided with case management services, physiotherapy, and ongoing occupational therapy assistance.

Conclusions with respect to the Applicant’s medical condition as a result of the accident

The Applicant’s ongoing complaints following the accident relate to his brain injury and to ongoing pain complaints, particularly in the right hip and neck.

Right hip and neck pain

The Applicant underwent an insurer’s assessment by Dr. Gwardjan, a physiatrist, on March 4, 2011⁷ for an opinion from a physical perspective as to entitlement to a non-earner benefit and housekeeping benefits. The Applicant, according to Dr. Gwardjan’s report,⁸ reported occasional neck and low back, but persistent right hip pain. The physical examination, however, was essentially normal:

From a physical perspective, today’s examination did not reveal any signs consistent with residual physical impairments and despite residual myofascial pain, examination suggests return to pre-existing physiological status and there are not significant features of ongoing musculoskeletal impairment.⁹

Dr. Gwardjan did not discuss the Applicant’s brain injury or suggest that the source of the Applicant’s pain be further explored. His conclusion from a physical, medical perspective was that the Applicant did not meet the disability test for a non-earner benefit or housekeeping benefits.

Dr. Howard Jacobs, a medical doctor who practises in the area of chronic pain, conducted an assessment on behalf of the Applicant in June, 2015. I am satisfied that Dr. Jacobs, based on his education and experience, has the requisite expertise to provide an opinion for the purpose of assisting me in arriving at a decision in this matter. Dr. Jacobs’ report, as appears often the case with medico-legal reports, was provided through a third party, as a result of which there were minor discrepancies between the original report which Dr. Jacobs brought to the Hearing and the report which was provided by the third party. I am satisfied by Dr. Jacobs’ evidence in this regard, that the discrepancies were administrative in nature only and that he was the sole author of the report which was put into evidence.¹⁰ Dr. Jacobs’ diagnoses included zygapophyseal joint pain involving the cervical spine and trauma to the pain sensitive structures of the right groin and right anterior-superior iliac spine region possibly affecting the lateral femoral cutaneous nerve. He diagnosed chronic pain.

There are consistent references in the various reports to the Applicant’s complaints of pain, including in the two reports just referred to above. The Applicant and others gave evidence that he purchased an e-bike because his ability to ride a pedal bike to the extent which he did prior to the accident was restricted by hip pain. There is evidence that the Applicant tends to minimize, not exaggerate, his health complaints. Dr. Fulton, for example, the neurologist who conducted an assessment on behalf of the Applicant, indicated that throughout the clinical interview, the Applicant was somewhat dismissive of changes in his health. “Only on more specific inquiry did he acknowledge ongoing pain in right hip, occasional headaches, some changes in his sleep patterns, and problems with his temper control.”¹¹

The Applicant, on my view of the evidence, including his oral evidence, is an unsophisticated, guileless man, with a pre-accident history of functional illiteracy. He was involved in a very serious accident. I accept his complaints of ongoing pain as credible and genuine and I accept that they are related to the accident. I accept Dr. Jacobs’ diagnosis of chronic pain. There is no medical evidence which contradicts Dr. Jacobs’ opinion as to the source of the Applicant’s pain.

Brain Injury

It is clear that the Applicant suffered a brain injury as a result of the accident. While the hospital records, referred to above, diagnose a “minor” acquired brain injury, the trauma to the brain was significant enough that it caused a brain haemorrhage.

Dr. Tuff, a neuropsychologist, assessed the Applicant on behalf of the Insurer on May 5, 2011 and provided a report dated September 12, 2011.¹² This is the only report provided by Dr. Tuff. The purpose of the assessment was to address the disability test for non-earner benefits and housekeeping benefits. Dr. Tuff concluded that although “there is objective evidence of mild neurocognitive disorder and other post-concussive emotional and behavioural sequelae, these impairments have minimal impact on daily routines and/or quality of life.”¹³ In terms of prognosis, it was his opinion that the neuropsychological impairments were temporary and there would be near-complete or complete recovery within a period of 12 months or less.

Dr. Fulton, also a neuropsychologist, conducted an assessment on behalf of the Applicant and provided a report dated May 9, 2011.¹⁴ Dr. Fulton diagnosed a Cognitive Disorder, mild, acute on chronic, Personality Change due to brain injury, and Adjustment Disorder. He described the Applicant’s brain injury as a “Moderate (complicated) Traumatic Brain Injury.”¹⁵ He appears to have come to this conclusion based on his review of the hospital records.¹⁶ The prognosis was guarded in his view.

Dr. Fulton provided a further report dated May 16, 2014. Extensive testing at that time confirmed no significant change in the Applicant’s functional status from one-year post-injury onward. The diagnosis remained unchanged.

Dr. Van Reekum, a neuropsychiatrist, assessed the Applicant and provided a report dated July 25, 2015.¹⁷ He is a medical doctor, unlike Drs. Fulton and Tuff who are psychologists. He gave his opinion at the Hearing that medical doctors are in a better position than psychologists to assess an organic brain injury. I agree. In addition to reviewing other relevant documentation in his report, he reviewed the hospital and other records made at the time of and soon after the accident.¹⁸ He noted the significant acceleration-deceleration forces during the MVA. He noted that the Applicant had suffered a number of musculoskeletal injuries, including a large laceration to his head, extensive comminuted fractures of his nasal bones and a compression fracture to his lumbar spine. He noted the findings with respect to the Applicant’s GCS at the time of and following the accident and Dr. Levy’s findings with respect to the same, discussed above. In his view the data in its entirety indicated that the Applicant had probably suffered a severe TBI (traumatic brain injury) during the accident. Given the Applicant’s catastrophic impairment designation, this is a reasonable conclusion. He noted that not only did the accident produce injuries, it also produced stresses such as chronic pain. He noted the report of Linda Davies, of Entwistle Health Solutions, of April 28, 2011¹⁹ in which she noted that the Applicant was somewhat overwhelmed by the attention he had been receiving since the accident.

Dr. Van Reekum went on in his report to discuss, having regard to various other reports, the sequelae of the accident including the Applicant’s cognitive impairments. He concluded that it was probable that the Applicant had developed significant cognitive impairments as a result of the accident, superimposed on his pre-existing low IQ and possible learning disability.

Dr. Van Reekum also reviewed the Applicant’s functional impairments,²⁰ noting that he walked and bicycled less. He noted various incidents reported in various occupational therapy reports such as having burned himself while cooking,²¹ not eating regularly and exhibiting poor hygiene.²² He noted the incident where the Applicant injured his toes with a lawn mower, with fractures and partial amputations. He left the emergency room without bandaging treatment.²³ He also noted reports of arguments that the Applicant had with his sister and his then roommate, Diane.²⁴ He noted the Insurer’s occupational therapy report of Judy Phillips dated August 24, 2012, which indicated significant safety concerns in that the Applicant was unable to provide appropriate responses to various emergency situations.²⁵

Dr. Van Reekum concluded that overall, the cumulative data showed that the Applicant was functionally impaired and of significant risk to his and perhaps others’ safety. Dr. Van Reekum’s conclusions are consistent with the evidence as a whole.

As part of his recommendations, he indicated that the Applicant required support and assistance in his community over time. He believed that he required constant attendant care and that he might require or at least benefit from institutionalization.

Dr. Van Reekum also indicated that it might be appropriate to have the Applicant’s capacity to make personal care decisions assessed. He referred in his report to the Applicant’s incapacity to manage property. The Applicant was found by a capacity assessor on two occasions to not have the capacity to manage his property.²⁶ The Applicant, however, was found in a capacity assessment report dated October 26, 2013, to have the minimally required understanding and appreciation to make decisions in the areas of healthcare, safety, shelter, clothing, nutrition and hygiene. The assessor noted that because of his difficulties with memory and difficulty to follow through with plans the Applicant will need ongoing support in the areas of healthcare and shelter.²⁷ Dr. Van Reekum appears not to have had this capacity assessment when preparing his report and recommendations.

I find on all of the medical evidence, that the Applicant sustained a serious traumatic brain injury in the accident which more likely than not has caused significant cognitive and functional impairment. The Applicant also suffers from chronic pain which has contributed to his impairment.

Non-Earner Benefit

It is the position of the Insurer that the leading decision on non-earner benefits, Heath v. Macleod (“Heath”)²⁸ directs us to compare the Applicant’s activities before the accident and after the accident. It is the further position of the Insurer that the Applicant’s life before the accident was quite basic, as demonstrated in the ODSP file, and, after the accident, remains quite basic. In terms of activities, he bicycled, drank beer, and played pool before the accident and still does so, as shown in the video surveillance. If his ability to bicycle is limited, he has acquired an e-bike or scooter, which helps him to get around.

In my view, while it would be wrong to attribute all of the Applicant’s post-accident behaviour to the accident, it is also wrong to attribute all of his post-accident behaviour to his pre-existing functional illiteracy. Heath directs us to look at life circumstances as well as activities. In terms of activities it is clear from all of the evidence including the oral evidence, that bicycling was a very important aspect of the Applicant’s quite simple life. He did not drive. After the accident his ability to cycle and walk was limited by hip pain. This was why he got an e-bike, from the evidence. An e-bike is not a bicycle. It is different in the way (for the purposes of illustration) that a wheelchair is different to walking. Bicycling, not an e-bike, was an important part of the Applicant’s pre-accident activity.

The accident, from the evidence, also affected the Applicant’s overall life circumstances. The evidence shows a decline in personal hygiene which, from the oral evidence of the Applicant’s sister and former roommate, was good prior to the accident. The Applicant’s personality has changed. He has gone from being good natured to being short tempered. While he still plays pool apparently, the people with whom he plays pool have changed. It appears from the evidence that perhaps one of the more significant changes in life circumstances since the accident has been the departure of his roommate, Diane, with whom he had shared a home on a platonic basis, for four or five years prior to the accident and two years afterwards. He had in the past been able to maintain a romantic relationship with another woman for seven years. It appears from the evidence, including the evidence of Diane, that the Applicant’s temper outbursts as well as safety concerns such as leaving cigarettes burning in ashtrays for example, were a large factor in Diane’s decision to move. Her departure has led to less stability in the Applicant’s life and financial pressures, and roommates who are viewed by the Applicant’s sister as less desirable.

The Applicant’s sister gave evidence of a trip down east by the Applicant to visit family which was so badly planned that his family members did not know he was coming and he was unable to connect with them. He slept in a stairwell on one of the nights. While it might not be necessary to have a brain injury to have this happen, or to have a lawn mower accident as discussed above, these incidents are nevertheless part of a larger pattern of declining judgment and behaviour on the part of the Applicant since the accident, likely contributed to by the brain injury.

The Insurer denied a non-earner benefit on the basis of Insurer Examinations in 2011 by Dr. Gwardjan and Dr. Tuff discussed above. Dr. Gwardjan’s report was limited to physical findings and was not very helpful. Dr. Tuff seems unduly optimistic in his assessment of full or near full recovery within a year of the accident, given the evidence as a whole. I prefer Dr. Van Reekum’s opinion that the Applicant suffered a complete inability to lead a normal life as a result of the accident.

In my view of the evidence as a whole, the Applicant has met the “complete inability to lead a normal life” test for non-earner benefits as articulated in the Schedule and in the Heath decision. The Applicant is entitled to non-earner benefits at the rate of $185.00 per week, from 26 weeks post-accident to date and ongoing in accordance with the Schedule.

Attendant Care

The Insurer, on two different occasions, visited the Applicant’s home. The first time, shortly after the accident, the Insurer took a statement which suggested that the Applicant required attendant care as well as housekeeping services. The Applicant was deemed to be catastrophically impaired because of a brain injury relatively shortly after the accident. He was living on ODSP payments, as was Diane apparently, because of back pain. This strongly suggests very limited financial means. The Insurer would have been aware of this. In addition, the Applicant had a pre-existing history of functional illiteracy. The second time the Insurer visited, in 2012, it was to take a statement from Diane as to whether she had incurred expenses as a result of providing attendant care services for the Applicant. She had not and so the Insurer denied payment for attendant care services on the basis they were not “incurred” within the meaning of the Schedule.

It is clear from the changes to the Schedule in 2010, that the legislature intended to limit monetary payment to service providers who were not professionals. Entitlement, however, to attendant care services or housekeeping services provided by a professional was not limited. It appears to me that the Insurer was focussed, particularly in 2012, on whether it had to pay for attendant services provided by Diane, and not at all on whether the services should have simply been provided. In my view, on the particular facts of this case, i.e. a catastrophically impaired Applicant with a brain injury living on government assistance who would not have been able to afford professional services on his own, the Insurer could have and should have let the Applicant know that the Insurer would pay for services, whether housekeeping or attendant care services, provided by a professional. I recognize that the Applicant had a lawyer and a case manager, at least by the time of the second visit, but the Insurer nevertheless has a first party insurer duty of good faith towards the Applicant and is responsible for paying for expenses which are reasonable and necessary.

Section 3(8) of the Schedule provides that if an arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred. I find that the Insurer’s failure in the circumstances of this case to advise an impecunious, functionally illiterate applicant of its obligation to pay for clearly necessary services if they were provided by a professional amounted to an unreasonable withholding of a benefit or unreasonable delay in payment of a benefit for the purposes of this section and I deem the attendant care services provided by Diane to have been incurred.

In addition, I find that it is likely on the preponderance of the evidence that Diane in fact incurred an economic loss in providing services given her credible evidence that she lost a babysitting job because of the Applicant’s behaviour after the accident while living with her and receiving assistance from her. This is so, even though the Insurer elicited from her at the Hearing that she had not provided all of the services precisely as set out in the applicable Form 1 and even though she appeared confused by the claim for benefits made by the Applicant’s lawyer. She is after all not a professional service provider. She acknowledged her signature on the forms submitted by the Applicant’s lawyer. The findings in Henry v. Gore²⁹ would be applicable to this time period, making the quantum assessed on the Form 1 to be the quantum payable.

The Applicant is entitled to payment of attendant care benefits therefore in the full amount of the applicable Form 1s from September 2010 to August 2012 ($673.51 per month from September 13, 2010 to December 13, 2010 and $361.22 per month from December 14, 2010 to August 14, 2012 when Diane left).

It appears that beginning in February 2013, attendant care services were provided by professional service providers, and the Insurer paid for those expenses as submitted. The Applicant’s sister gave evidence that she has provided attendant care services but her only indication of economic loss was mileage and the evidence in this regard was overall very vague. I find that there is insufficient evidence of economic loss by the Applicant’s sister in providing attendant care expenses and those expenses are therefore not incurred.

There is disagreement between the Insurer’s Form 1 and the Applicant’s Form 1 for the period from September 2012 to August 31, 2015 but the disagreement does not matter since expenses provided by professional service providers during that period of time were never fully incurred even to the level of the Insurer’s Form 1. The Insurer has paid what was incurred.

It is not at all clear why attendant care services were not provided even to the amounts allowed by the Insurer but there is insufficient evidence that the reason can be attributed to the Insurer. There is also insufficient evidence that a lack of cooperation by the Applicant is the reason.

In a Form 1 dated February 5, 2016, Asma Malik assessed attendant care needs in the amount of $6,332.28 per month. The Insurer objected to this level of attendant care benefits being included in the Arbitration since the amounts specified in the Arbitration related only to the Form 1 amounts discussed above. The quantum of attendant care benefits, however, is clearly in dispute and the issue of quantum has been mediated. The Insurer was fully aware of the February 2016 amounts and in fact responded to Ms. Malik’s Form 1. There is no prejudice to the Insurer in arbitrating the higher level of attendant care benefit, and not arbitrating it would not only be unreasonable but would lead to a multiplicity of proceedings.

Ms. Malik’s much increased level of attendant care needs is based largely on the requirement for 18 hours per day of supervision for the Applicant and is consistent with Dr. Van Reekum’s recommendation. It does not, however, seem realistic given that the Applicant has not been found incapacitated to make decisions for his personal care. The Applicant’s sister and others, for example, commented on what they considered to be the unsafe operation of the e-bike by the Applicant. An e-bike, unlike a motor vehicle, does not require a licence. A doctor can recommend that a licence be revoked for medical reasons. That does not apply to an e-bike. It is not clear what kind of supervision outside of suggestion would stop the Applicant from riding his e-bike.

It may be, as Dr. Van Reekum suggested, that the Applicant would benefit from institutionalization, but there was no evidence led that suggested that the Applicant wants to live in an institution or that he wants to be supervised 18 hours per day. He has not been found incapacitated with respect to decisions about personal care. I note, however, the capacity assessor’s comments discussed above in which she indicated that the Applicant would require ongoing support as regards healthcare and shelter. This is consistent with the evidence as a whole. It appears to me that the Applicant requires assistance and is not receiving enough assistance.

The amount of $146.33 per month proposed in the insurer Form 1 dated September 23, 2016 by Heather Seiling is wholly inadequate. Ms. Seiling relied entirely on Dr. Tuff’s overly optimistic 2011 report with respect to the Applicant’s medical condition. I prefer the more up to date, more thorough report of Ms. Malik. I accept her evidence that the report filed is hers and do not consider it flawed because any unedited versions, including those in electronic form, were not available to the Insurer. She was clear that aside from some minor editing of a clerical nature, the report as filed was hers. Where I mostly differ with Ms. Malik is the level of supervision recommended given that the Applicant has the capacity to make personal care decisions. Five or six hours per day of supervision might be more reasonable and realistic going forward.

In the absence of a realistic Form 1 by either party after February, 2016, I find that the then existing Form 1 should remain in effect. The amount of $529.05 allowed by the Insurer was incurred to some extent, although not fully incurred to August 31, 2015. The dispute with respect to ongoing attendant care services appears to have arisen around that time. Attendant care services appear not to have been incurred after that time.

The onus of proof is on the Applicant. I do not have sufficient evidence that had the Insurer’s most recent Form 1 been more reasonable that it would have been incurred. I therefore decline to deem attendant care benefits incurred after August 31, 2015.

Housekeeping Benefits

Julie Entwistle, occupational therapist, recommended 4.5 hours of housekeeping per week in a report dated October 25, 2010.³⁰ This is reasonable. The benefit was denied based on the insurer reports of Dr. Gwardjan and Dr. Tuff in 2011 and discussed above which concluded that the Applicant was not disabled. I do not find those reports persuasive for the reasons discussed earlier. I find that the Applicant is entitled to 4.5 hours of housekeeping per week. In the absence of evidence and based on general experience I find that $10.00 per hour is a reasonable rate for a non-professional cleaner and $20.00 for a professional cleaner. I deem these amounts to have been incurred pursuant to section 3(8) of the Schedule for the reasons discussed earlier under attendant care. I find $10.00 per hour to have been incurred to August 2012, when the Applicant’s roommate who was performing housekeeping services on behalf of the Applicant left. I also find for the reasons given that the roommate suffered an economic loss as a result of providing services for the Applicant. I find that had the Applicant been aware that the Insurer was obliged to pay for a professional cleaner, he would have obtained one. From September 1, 2012, to date and ongoing, I deem housekeeping benefits to have been incurred at the rate of $20.00 per hour.

Special Award

I have found unreasonable delay in making payments and withholding of benefits for the purposes of the “deeming” provisions of section 3(8) of the Schedule. I do not, however, find the Insurer’s conduct so egregious as to attract the more punitive special award provisions for unreasonable delay contained in section 282(10) of the Insurance Act, which deals with special awards. In coming to this conclusion, I note that the Applicant was provided with case management services shortly after he was found to be catastrophically impaired and that discrepancies in what the Insurer was prepared to pay and what was claimed cannot be attributed to the Insurer.

Interest

The Applicant is entitled to interest in accordance with the Schedule on all amounts found to be owing.

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.

January 22, 2018

Anne Morris Arbitrator

Date

Financial Services Commission des

Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 17

FSCO A12-006873

BETWEEN:

ROBERT MACLEOD

Applicant

and

COACHMAN 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, it is ordered that:

1. Mr. MacLeod is entitled to receive a non-earner benefit in the amount of $185.00 per week from 26 weeks post-accident to date and ongoing.

2. Mr. MacLeod is entitled to housekeeping and home maintenance services at the rate of $45.00 per week from September 13, 2010 to August 31, 2012 and at the rate of $90.00 per week from September 1, 2012 to date and ongoing.

3. Mr. MacLeod is entitled to attendant care benefits, over and above what has already been paid by the Insurer, in the amount of $673.51 per month from September 13, 2010 to December 13, 2010 and $361.22 per month from December 14, 2010 to August 14, 2012.

4. Coachman is not liable to pay a special award.

5. Mr. MacLeod is entitled to interest for the overdue payment of benefits in accordance with the Schedule.

6. 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.

January 22, 2018

Anne Morris

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Glasgow Coma Scale
3. 3See the consultation report of N. Delbel dated September 14, 2010, Clinical Notes and Records, Brantford General Hospital, Arbitration Brief, Tab 104, p. 50.
4. 4Clinical Notes and Records, Brantford General Hospital, Arbitration Brief, Tab 104, p. 91.
5. 5Dr. Levy’s original report was not put into evidence but is referred to in other reports including, as here, in the report of Dr. Van Reekum dated July 25, 2015, Arbitration Brief, Tab 13, p. 17. CAT is not an issue in this arbitration.
6. 6See OCF 9s dated March 21 and March 16, 2011, Arbitration Brief, Tabs 79 and 80.
7. 7See report of same date, Arbitration Brief, Tab 22.
8. 8Ibid., p. 8.
9. 9Ibid.
10. 10See report dated June 8, 2015, Arbitration Brief, Tab 12.
11. 11Report of Dr. Fulton dated May 9, 2011, Arbitration Brief, Tab 7, p. 10
12. 12Arbitration Brief, Tab 23.
13. 13Ibid., p. 14.
14. 14Arbitration Brief, Tab 7.
15. 15Ibid., p. 16.
16. 16See p. 8 of the report.
17. 17Arbitration Brief, Tab 13.
18. 18Ibid., p. 42 and 43.
19. 19Arbitration Brief, Tab 34.
20. 20Arbitration Brief, Tab 13, pp. 47 and 48.
21. 21Occupational Therapy Update Note and Form 1 by Julie Entwistle dated October 10, 2012, Tab 43.
22. 22Occupational Therapist/Physiotherapist Update by Linda Davies dated December 16, 2011, Arbitration Brief, Tab 38.
23. 23Update by Linda Davies dated April 25, 2012, Arbitration Brief, Tab 40.
24. 24Ibid.
25. 25Arbitration Brief, Tab 24 at p. 12.
26. 26See Capacity Assessments dated December 12, 2012 and February 16, 2017 at Tabs 8 and 16 respectively of the Arbitration Brief.
27. 27See Arbitration Brief, Tab 9, pp. 5 and 6.
28. 28(2009 ONCA 391)
29. 29Henry v Gore Mutual Insurance Co. 2013 ONCA 480
30. 30Arbitration Brief, Tab 28, p. 15.