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

Neutral Citation: 2018 ONFSCDRS 37

FSCO A16-000346

BETWEEN:

T.I.

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

Before: Marcel D. Mongeon, Arbitrator

Heard: At Hamilton, Ontario from November 20 to 24, 2017

Appearances: Mr. T.I. participated Mr. Jonah Waxman for the Applicant Mr. Ryan Finlay, Student-at-Law for the Applicant Mr. Curtis Zizzo and Ms. Jasmina Mrkalj-Skelly for the Insurer

Issues:

The Applicant was injured in a motor vehicle accident on January 30, 2014 and sought accident benefits from the Insurer, 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 amended.

The issues in this Hearing are:

Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
Is the Applicant entitled to receive a weekly income replacement in the amount of $326.00 per week,² less amounts paid, from February 6, 2014³ to date and ongoing?
Is the Applicant entitled to receive a medical benefit in the amount of $5,005.45 for OT services and assistive devices, service provider Kindree OT Services, dated June 15, 2015?
Is the Applicant entitled to attendant care benefits in the amount of $2,036.27 per month from January 30, 2014 to date and ongoing?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is the Insurer liable to pay the Applicant’s expenses in respect of the arbitration?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration?

Result:

The Applicant did not suffer a catastrophic impairment as a result of the accident.
The Applicant is entitled to receive a weekly income replacement in the amount of $326.00 per week, less amounts paid, from February 6, 2014 to date and ongoing.
The Applicant is not entitled to the claimed medical benefit.
The Applicant is not entitled to the claimed attendant care benefits.
The Applicant is not entitled to a special award.
The Applicant is entitled to interest at the rate of 1% per month on any unpaid benefits.
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:

FACTS

The following determination of facts is based on the oral evidence of the witnesses and the documents filed.

Accident and Injuries

The Applicant was a seat-belted driver of his automobile when, while exiting a parking lot to the main street, his car was “T-boned” on the driver’s side by another vehicle at approximately 3:00 p.m. (the “MVA”). His automobile’s airbags deployed. The Applicant had difficulty recalling the period of time immediately following the accident and may have lost consciousness. The collision caused the Applicant to strike the interior of his car on his left side causing injuries.

The Applicant was fitted with a cervical collar and placed on a backboard at the scene of the accident by EMS staff. He was transported by ambulance to the Hamilton General at which time his complaints included left-sided arm and leg pain, left-sided abdominal pain, and left shoulder and neck pain. Diagnostic imaging was performed which did not detect any anomalies.

The Applicant was discharged from hospital at 19:50 the evening of the accident and advised to follow-up with his family physician.

The Applicant’s History

Prior to the MVA, the Applicant had a middle class life. Born in Montenegro in 1962, the Applicant immigrated to Canada in 1987. He was married with three children approaching adulthood. He has a grade eight education and his native tongue is Albanian. I observed him to be orally fluent in English although he indicated very poor to no fluency in reading or writing English.

The Applicant had worked for Ford in Oakville, ON since 1990. His brother had helped the Applicant to obtain work at Ford as an assembler. The Applicant worked a full-time shift and sought as much overtime as was offered to him. As part of his work as an assembler he was always on his feet and would regularly lift heavy objects weighing up to 40 pounds.

The Applicant and his family lived in a rural home. The Applicant had personally built an extension to the home. The Applicant’s marriage was breaking down at the time of the MVA. His family physician testified that on the same day as the MVA, the Applicant received “papers” relating to a divorce from his spouse. The Applicant’s brother noted that the separation with the wife had preceded the MVA.

Immediately prior to the MVA, the Applicant had lower back pain reports with his employer. Specifically, the Ford medical file relating to the Applicant shows the following relevant entries:

January 17, 2014 – received Advil for lower back pain;
September 25, 2013 – received Advil and ice for lower back pain. Was given modified duties for balance of shift;
October 15, 2012 – received ice and ibuprofen for back pain;
June 20, 2012 – received ice and ibuprofen for back pain;
May 28, 2012 – received ice and ibuprofen for back pain;
March 7, 2012 – received ice and ibuprofen for back pain;
February 27, 2012 – returned to work on full duties after being on restricted duties for low back pain since January 10, 2012;
January 10, 2012 – returned to work on restricted duties having been off of work on medical leave since March 1, 2011.
[I have not excerpted other reports prior to two years before the MVA.]

The Applicant also had a record of WSIB and disability claims with Ford.

The Applicant’s post-MVA Condition and Circumstances

Since the MVA, the Applicant notes his condition has been deteriorating. His most significant complaint is of pain. He tries to control the pain with Tylenol 3 and recreational alcohol. The pain affects his left shoulder and fingers. His left arm is sore from his neck to his hand. The Applicant’s pain gets worse if he walks too much. The pain is worst in his head and shoulder. The Applicant acknowledges back pain post-MVA.

The Applicant complains of feeling very sad at times and also has memory difficulties. He also expresses difficulties with tasks requiring concentration. He believes his mood has declined since the MVA and suggests that he has never had a day where he is in a good mood since the accident.

The Applicant does not perform any chores or duties around the house. These are performed by others. He does drive short distances on his own. He has also taken at least two trips to Eastern Europe after the MVA. On these trips he was accompanied by relatives and he was visiting relatives.

The Applicant’s brother testified. The Applicant’s family physician also testified. Other than testimony of the Applicant himself, these two witnesses testified to the change in the Applicant after the MVA. I found both of the witnesses credible and their testimony relating to changes noted in the Applicant’s personality and general demeanour was unshaken on cross-examination.

The family physician’s testimony is compelling. She notes that the Applicant since the MVA complains of headaches, and neck pain, and is depressed. He has gained 30 to 40 pounds and is drinking more than he should be. With respect to the back pain, pre- and post-MVA, the family physician notes his pain is no longer in the lower back which was the case pre-MVA but is in the neck and upper back including the trapezius. She has diagnosed the Applicant with post-concussion syndrome.⁴

In her clinical notes, the family physician expressed an important observation on a note. After a record of notes relating to the Applicant’s continuing impairments, on February 13, 2015, she writes “I am convinced that [the Applicant] will never return to FORD!” (Emphasis in original.)

In addition to his injuries from the MVA, a significant change in the Applicant’s life was becoming separated from his wife and becoming affianced to his fiancée and having two children with her. The fiancée testified. The Applicant and she met in February 2014 after the MVA. She was formally affianced to the Applicant on November 22, 2014.

The fiancée noted that she first met the Applicant through his sister. Immediately after the MVA, the sister was asking within the Albanian community for assistance. The fiancée met the Applicant and felt that she could assist with his care. She notes that there was nothing romantic about her relationship with the Applicant. She felt more pity than love for him.

The fiancée provides certain care functions for the Applicant. She organizes his pills on a weekly basis; she clips his toenails. She tries to organize his time. When the fiancée took a trip to Eastern Europe in June of 2015, she hired someone who was paid $850 to look after the Applicant.⁵

The fiancée has had two children by the Applicant since the MVA. Neither was planned by the couple. The first child was born on November 27, 2015; the second on February 9, 2017. The Applicant did not attend either birth. He does not help with childcare nor does the fiancée trust him to leave children alone with him.

The fiancée has also adopted three nieces – the daughters of her deceased sister – whom she has sponsored for immigration into Canada. The three nieces live in the Applicant’s home and help with the small children. The adoption and sponsorship of the nieces had begun prior to the fiancée’s relationship with the Applicant.

In his own testimony and that of the fiancée, the Applicant has little to do with any of the children in the home. Although in some of the surveillance pictures presented with his small children, the Applicant seems to be joyful, in other pictures, it is difficult to see any joy. I can come to no reasonable conclusion from the surveillance photographs on this issue.

A factual complication has been the acquisition by the fiancée of two bars in Hamilton. One has been recently acquired and was not a factor in the Hearing. Both bars include the name “Tom”, the Applicant’s name. The fiancée has indicated that although these are her sole businesses, she named them after the Applicant so he could have something that he could feel good about.

The Insurer commissioned surveillance of the Applicant at the fiancée’s first bar. The Applicant spends a great deal of time at the bar. He also appears to provide some assistance in the business such as running errands with bank deposits, bringing in ice and similar tasks. One of the still photographs shows him behind the bar speaking to what I would presume are patrons. Although he has appeared behind the bar in the surveillance evidence, none of the surveillance shows him pouring drinks, serving food, making cash or otherwise performing any functions that would be expected of an employee. The actions are not inconsistent for someone related to the owner of the bar.

An employee of the bar, Shayla Brook, testified. She made it clear that the bar belongs to the fiancée and the Applicant only comes in because the fiancée does not like to leave him home by himself. The witness commented that the Applicant does not seem to have any interests or hobbies outside of coming to the bar.

The fiancée was much blunter. When asked why she would take the Applicant to her bar, she answered that it was cheaper that he should drink at her bar rather than somewhere else. She acknowledges that the Applicant has trouble managing his alcohol intake but suggested it is easier to manage him at a bar she controls.

Although the issue of the Applicant’s partial ownership of the bars was suggested, I find that there is no evidence to support it. The surveillance evidence is consistent with the testimony on the issue; although the Applicant may run the odd errand for the bars owned by his fiancée, he does not have any employment or managerial functions.

Medical and Other Evidence relating to Benefits

One important declaration affecting benefits (catastrophic impairment) and two ongoing benefits (income replacement benefits and attendant care benefits) have been sought by the Applicant. In addition to the factual evidence referred to above, medical expert testimony was provided by the parties on these issues as follows. I have already commented on the family physician’s evidence.

Dr. Jacques Gouws was qualified as an expert in Clinical Psychology and testified for the Applicant. His report of September 12, 2016 is in evidence. His conclusion is that the Applicant’s prognosis for future full psychological recovery is “extremely bleak.” The prognosis is further complicated by the fact that the Applicant “is psychologically rather unsophisticated.”

Dr. Gouws was also part of a multi-disciplinary assessment that assessed the Applicant for catastrophic impairment. As a part of that assessment, Dr. Gouws established that the Applicant suffered a marked impairment in three domains and an extreme impairment in one (concentration, persistence and pace) of the domains established under Chapter 14 of the AMA Guidelines⁶.

Dr. Gouws is of the opinion that “there is compelling clinical data that [the Applicant’s] current psychological difficulties are materially related to the [MVA].”⁷

On his examination and cross-examination, Dr. Gouws reiterated the opinions made in his report. On cross-examination, he acknowledged that a neuropsychological assessment would have been helpful in determining the Applicant’s condition. On cross-examination, Dr. Gouws also noted that the Applicant should likely not be driving but also noted that psychologists do not have reporting obligations for driver’s licence issues. Dr. Gouws also acknowledged that if there was extensive surveillance evidence, this might affect his opinion.

Dr. Felix Tyndale testified as an expert in neurology for the Insurer. His report containing his opinion was available to me.⁸ It included the opinion that “[the Applicant] suffered a mild traumatic brain injury in the [MVA]. He continues to report memory difficulty, headaches, daily analgesic use for headaches, reduced sense of taste, reduced hearing, and momentary imbalance with certain movements.” Dr. Tyndale continues: “The accident-related neurological diagnosis consists of mild traumatic brain injury, chronic post-traumatic headaches, and probable medication-overuse headaches.” Dr. Tyndale deferred any opinion on the Applicant’s catastrophic impairment status to other assessors.

On cross-examination, Dr. Tyndale acknowledged that he did not formulate an opinion on the Applicant’s ability to return to work. On redirect, he also acknowledged that in this case, the best assessor of cognitive function would have been a neuropsychologist.

Dr. Michel Rathbone testified as an expert in neurology for the Applicant. His reports⁹ are in evidence. As part of those reports, I note that many of Dr. Rathbone’s comments and diagnoses touch on psychological findings. Since these are outside of the expertise of a neurologist, I have been careful to only consider Dr. Rathbone’s findings that relate to his expertise. In this regard, his conclusion is clear and unshaken by cross-examination. That opinion is that there are neurological reasons for the Applicant’s psychological complaints. Dr. Rathbone has also established that in his opinion, the MVA is the reason for the Applicant’s limitations.

Dr. Rathbone is of the view that, on a neurological basis, the Applicant would find it difficult if not impossible to work. On catastrophic impairment, Dr. Rathbone only dealt with the Applicant’s whole person impairment, which was not sufficient for a catastrophic impairment determination.

On cross-examination, Dr. Rathbone acknowledged that there were facts that he did not have; however, on redirect he established that none of the gaps in the facts would have caused him to change his opinion, which was principally based on his neurological examination and file review of the Applicant.

Dr. William Gnam was qualified as an occupational psychologist for the Insurer. He examined the Applicant for a catastrophic impairment determination. As a part of that examination, Dr. Gnam formed the opinion that the Applicant was purposely providing symptom amplification and was attempting to consciously manipulate the psychometric tests that were administered. This opinion was also reflected in his report.¹⁰ Exhibit 9 relating to a test completed by the Applicant was entered into evidence as an example of a test that was allegedly manipulated by the Applicant.

Dr. Gnam notes as part of his testimony that the fact that the Applicant was continuing to drive was indicative of his high functioning in some of the domains relevant to the assessment of catastrophic impairment. He notes that it was unlikely to lead to a marked impairment in any domain. Dr. Gnam opined that the Applicant was not catastrophically impaired under either criteria 7 or 8 in his view.

With respect to causation, Dr. Gnam in his report¹¹ opined that “If [the Applicant] does have mild mental disorders, it is possible that the [MVA] has made a direct causal contribution to those disorders.”

In connection with the issue of the Applicant’s ability to work, Dr. Gnam referred to video surveillance evidence as follows: “More objective and relevant to the determination of [the Applicant’s] capacity to manage work-like stresses is the video surveillance evidence, which depicts Mr. T.I. managing continuous hours of varied and complex work functions, with no evidence of deterioration.”

My own review of the surveillance evidence did not draw me to the same factual conclusion. Although the Applicant is seen at the fiancée’s bar for hours at a time, I did not see him managing various and complex work functions. I saw him principally sitting on a barstool. I did not see him at any time serving alcohol or food or taking cash, which would have been expected if he was working there.

Other relevant medical and associated evidence includes the following:

Income Replacement Benefits – An OCF-3 was submitted to the Insurer signed by the family physician on February 12, 2014.¹² Other income information, including tax returns, has been provided. No other OCF-3 suggesting a permanent inability to carry on employment activities has been submitted by the Applicant.

Long Term Disability and CPP Disability claims have been approved for the Applicant. Because such claims do not need to prove causation and may have different tests for disability than the income replacement benefits (“IRB”) test, in my view, they are not fully determinative of the issue of benefits under the Schedule. I still need to make my own independent determination using the specific criteria of the Schedule.

I did note above in footnote 2 that the parties have agreed that the correct weekly amount of IRBs if they are awarded is $326.00 per week. I see no reason to disagree with this amount. It appears to be reasonably supported by the other information I have been provided about the pre-MVA income and the receipt of other payments.

A letter of January 24, 2017 signed by various health professionals relating to the Applicant’s ability to work was provided.¹³ The letter suggests that the Applicant is “deemed disabled [sic] from any occupation that he is reasonably suited for by education, training and experience.” I note that the letter does not provide any additional background or basis for this opinion. However, I also note that there was little cross-examination on the statement when some of the authors testified.

The IRB was terminated as of July 10, 2015 on the basis of assessments conducted by Dekar, Debow and Jaroszynski.¹⁴ Ms. Dekar’s reports¹⁵ relate to the Applicant’s functional abilities. She was of the opinion that the Applicant demonstrated a sedentary level of work capacity. She was also of the opinion that the Applicant demonstrated a self-limiting level of performance.

Dr. Debow’s report¹⁶ dealt with the Applicant’s psychiatric condition. The opinion rendered was that there was no psychiatric condition that led to a substantial inability to perform the essential tasks of his pre-accident employment. I do note that there is no analysis in this report as to what those tasks were. I also note that the Applicant was “suspect for consideration but not diagnosed with fulfilling criteria of self-report with limited reliability.”

Dr. Jaroszynski¹⁷ provides a physiatrist’s opinion. This report notes the significant pre-MVA lower back pain and the possibility that the family physician was about to recommend that the Applicant should stop working as a result. The report notes that there was not a significant traumatic injury. Significant symptom magnification is also noted on the part of the Applicant. The report concludes that as a result of the foregoing, the Applicant does not have a substantial inability to perform the essential tasks of the pre-MVA employment. I note that the report does not actually suggest what those tasks are. It is also unknown to what extent the assessor’s concerns about symptom magnification entered into his conclusion.

There are a number of addenda to these reports which do not change the final conclusions.

Attendant Care Benefits – Report and Form 1 completed by Margo Kindree dated June 5, 2015.¹⁸ The Form 1 shows $2,036.27 as the monthly amount of the attendant care benefit sought.

The Insurer has also had an occupational therapy report prepared dated August 17, 2015. The Form 1 accompanying the report shows $0 as the monthly amount of attendant care payable. That report and the accompanying explanation of benefits also suggest a sub-par effort on the part of the Applicant.

Evidence was presented by the fiancée that she sustained an economic loss to join the Applicant in Hamilton from Toronto where she originally lived by giving up employment at two locations and also having to sell her home.

Medical Claim for $5,005.45 – An OCF-18 by Margo Kindree dated May 16, 2015 was submitted. Occupational therapy coaching and a number of assistive devices were proposed.

The Insurer obtained a report responding to this which showed only $42.44 of the proposed assistive devices as being reasonable and necessary. I note that this amount was not paid out by the Insurer.

SUBMISSIONS AND ANALYSIS

The Applicant submits that he was substantially injured in the MVA and his impairments are sufficient that he should be entitled to a declaration of catastrophic impairment as well as a finding of his entitlement to IRBs. To further support his claim for IRBs, he points to his having been declared entitled to long term disability benefits and a CPP disability pension.

The Applicant further submits that he should be entitled to an attendant care benefit based on his fiancée’s assistance and that she has suffered an economic loss by providing that assistance. He seeks the medical and assistive devices benefit as appropriate for the occupational therapy devices recommended. Finally, he seeks a special award on the basis that the Insurer improperly delayed paying him these benefits.

The Insurer submits that there are two indicia to suggest that the Applicant does not have a valid claim for any of the benefits sought. The first is that the MVA is not the root cause of his current difficulties. The Insurer suggests that the Applicant’s chronic lower back problems (well documented in the Ford and the family physician’s records) had the Applicant discussing possibly going off of work prior to the MVA. His current pain is merely an extension of that in the Insurer’s submissions.

The second is that the Insurer points to the many reports suggesting a sub-maximal effort on the part of the Applicant in presenting himself to assessors. The Insurer also couples this with copious surveillance evidence to suggest that the Applicant is not hindered in his lifestyle but is rather able to assist his fiancée in running her business and is seeking to make that with his sub-maximal effort on assessments.

I analyze each of the benefits sought as follows:

Catastrophic Impairment

The Applicant can be determined to be catastrophically impaired in one of two ways: the first, which is not applicable given the Applicant’s own reports, is on the basis of a whole body impairment percentage. The second, and most relevant, is through an assessment of the Applicant’s functioning in four domains.

The relevant subsections of the Schedule read as follows:

(2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

(f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(5) Clauses (2) (e) and (f) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(b) two years have elapsed since the accident.

Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 further allow us to understand the terms of Class 3, 4 or 5 impairment. Specifically, a Class 3 impairment is known as a ‘moderate impairment’ and is further explained by ‘Impairment levels are compatible with some, but not all, useful functioning.’ Class 4 is a ‘marked impairment’ and is explained: ‘Impairment levels significantly impede useful functioning.’ Class 5 is an ‘extreme impairment’ and is explained as: ‘Impairment levels preclude useful functioning.’

In order to prevail, an Applicant need only demonstrate marked impairment in one of the four domains of function set out in the AMA Guidelines. The four domains of functioning are: a) activities of daily living; b) social functioning; c) concentration, persistence and pace; and d) deterioration or decompensation in work or work like settings. Domain d) is sometimes also referred to as adaptability.

The first question is whether the Applicant suffers from any mental disorders?

Although the Insurer’s assessors were not ready to support such a finding, the Applicant’s assessors and his own family physician would. I also note the lay evidence of the brother that there has been a significant change in the Applicant’s demeanour suggesting mental problems. On this latter issue I note the Supreme Court of Canada’s decision in Saadati v. Moorhead,¹⁹ which held that a finding of mental injury need not rest on only a psychological finding.

Based on the evidence presented, I conclude that the Applicant does have a mental disorder.

The second question then is does the Applicant have a marked impairment in at least one domain of functioning?

Although there is no question in my mind that the Applicant has had some type of change in his personality and is functioning at a lower level after the MVA, I do not find that in any of the four domains of functioning it can be said that he has had more than a Class 3 or moderate impairment. The fact that he continues to drive is, for me, a significant indicator of his ability to not be impeded in useful functioning.

In argument on this point, I have been referred to Cumberbatch and Guarantee²⁰ and Salman and Allstate.²¹ In both of these cases, even though the applicants continued to drive, they were found still to be markedly impaired in functioning given the other limitations that they demonstrated.

In this case, although I have significant evidence of depressive tendencies and a change in personality, I have not had significant evidence of how this has impeded the Applicant’s functioning. As a fact, I cannot find that in any of the four domains the Applicant suffers from more than a moderate impairment at all. He may be limited in some useful functioning; he is not limited in all or a significant portion of useful functioning.

The Applicant is not catastrophically impaired.

Income Replacement Benefits

In my determination of this benefit, I must first deal with the Insurer’s submissions relating to the fact that the OCF-3’s information is insufficient or incomplete having been competed so quickly after the MVA. In practice, the requirement of forms is to provide the Insurer sufficient information in order to ensure that it can properly adjust a claim.

In the case of this OCF-3, there is no argument made that somehow the Insurer was ever hindered in its task of having information on which to adjust the claim for IRBs. Its assessors’ reports make it clear that they were well aware of the Applicant’s pre-MVA employment and were able to obtain the appropriate information from the employer in order to assess the claim.

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

The first rule – applicable to the first 104 weeks post-MVA – is that the Applicant “suffers a substantial inability to perform the essential tasks of his … [pre-MVA] employment.” The second – applicable after the first 104 weeks – is that “as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

Both tests also depend on an impairment being caused by the MVA.

I begin with that requirement. Am I satisfied that the Applicant was injured as a result of the MVA? The Insurer submits that I should take note of the Applicant’s restricted effort on assessments, the lack of clear medical evidence of a significant trauma, the fact that the Applicant had a significant history of lower back problems including a year off of work and the surveillance evidence showing him sitting in his fiancée’s bar.

To my analysis, the most significant evidence I have of an impairment caused by the MVA is the testimony of both the brother and the family physician. Although each of these witnesses have possible biases (in the case of the family physician, I would expect her to be an advocate for her patient’s health care needs), I believe both have provided me with reliable testimony on the Applicant’s condition both before and after the MVA.

The trauma may not have involved broken bones. However, I am convinced that, in the MVA something did happen to the Applicant. There is even proof in some of the Insurer’s assessments to this effect. Dr. Gnam, for example, acknowledges that the MVA had a causal contribution; Dr. Tyndale acknowledges “mild traumatic brain injury”.

The most significant witness on this issue is the family physician. She is an expert trained in medical care; she has had many visits with the Applicant over time spanning both before and after the MVA and she provides me with her view that the Applicant is incapable of going back to work at Ford.

As it turns out, this last view provides me with sufficient evidence for pre-104 IRBs and gives me a good start on the analysis of post-104 week benefits. The test for post-104 benefits takes into account an applicant’s education, training and experience.

In this case, I know from the Insurer’s functional assessor, Ms. Dakar, that the Applicant can only achieve sedentary tasks. There is no question that in his pre-MVA employment he was always on his feet and engaged in lifting heavy loads.

The Applicant’s education is grade 8 in an Eastern European schooling system. He seems to be functionally illiterate in writing and reading English. On this latter point, I wonder how much of the frustration of assessors suggesting self-limitations were, in part, generated by difficulties in trying to read and write and even understanding spoken English. I do not make a finding on this point, I only note that this point was sufficient for me to inquire if some of the tests were available in Albanian.

The Applicant’s prospects for re-employment are bleak. He is unlikely to find any position that allows him to sit and does not require higher language skills. Although the surveillance suggests that he might possibly be suited to bar work that is really not a comparable position. His employment status and income as an Assembler at Ford would be a great deal higher than the minimum wage and tips that would be achieved in the hospitality sector. I also note there is little in the hospitality sector that does not involve staying on one’s feet for a long period of time.

Retraining would not seem to be an option either. Again, language and personality would likely get in the way of allowing the Applicant to restart in some other field.

I apply the general approach suggested by Burtch v. Aviva Insurance Co. of Canada.²² I have analyzed the Applicant’s ability to return to comparable work that he had pre-MVA in a number of ways; all of these end up in the same conclusion for me: there is no employment available for the Applicant.

The Applicant is entitled to both pre-104 week and post-104 week IRBs.

Attendant Care Benefits

I make an important finding of fact: I hold that the evidence does not sufficiently establish for me that the fiancée has suffered any economic loss at any time post-MVA. I am not satisfied that her testimony and the documents provided allow me to be satisfied that she had an economic loss. The actual timing of the lost work in Toronto is uncertain and significantly predates the preparation of the Form 1.

Finally, I acknowledge the applicability of the MVACF and Barnes²³ case, noting that this would also have limited any claim of attendant care to the economic loss actually proved.

The Applicant is not entitled to an attendant care benefit.

Medical and Assistive Devices

I note that I received no testimony on this issue. Although the report that accompanied the OCF-18 gave a rationale for the provision of the occupational therapy services, I am not persuaded that they are sufficient for me to consider them as reasonable and necessary under the Schedule. Accordingly, the Applicant is not entitled to this benefit.

Special Award

Given my other decisions, the Applicant has prevailed in only the IRB. Have I had any evidence that this benefit was withheld by the Insurer in an unreasonable manner?

At all times in coming to its decision, the Insurer acted with appropriate assessments which it fully considered. Its case up to and including the Hearing was reasonable and its positions cannot be criticized by me in any manner. The examination and cross-examination of the Insurer’s adjuster does not alter this view at all. The adjuster appropriately determined that the findings under the long term disability claim and the CPP disability claim were not relevant to her work in the same way that I was not persuaded they were relevant to my decision.

The Applicant is not entitled to a special award in this case.

Interest

Section 51 of the Schedule makes it clear that the Applicant is entitled to receive interest at the rate of 1 percent per month compounded monthly on unpaid amounts which are overdue. This amount shall be paid on the outstanding benefits payable to the Applicant.

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.

February 12, 2018

Marcel D. Mongeon Arbitrator

Date