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

Neutral Citation: 2018 ONFSCDRS 5

FSCO A14-009129

BETWEEN:

LARA HASSANI

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

Before: Jessica Kowalski

Heard: February 21, 22 and 23 and March 10, 2017, with submissions on expenses to March 31, 2017, in Hamilton, Ontario.

Appearances: Samia Alam for Ms. Hassani Alexander Neaves for Guarantee Company of North America

Issues:

The Applicant, Lara Hassani, was injured in a motor vehicle accident on July 1, 2011. She applied for and received statutory accident benefits from Guarantee Company of North America (“Guarantee”), payable under the Schedule.¹ Guarantee denied non-earner benefits as well as funding for a catastrophic assessment.² The parties were unable to resolve their disputes through mediation, and Ms. Hassani applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Hassani entitled to weekly non-earner benefits in the amount of $185.00 per week from January 1, 2012 to date and ongoing?
Is Ms. Hassani entitled to payment of $23,323.20 for a catastrophic assessment proposed by Canadian Health and Wellness in a plan dated July 24, 2015?

Result:

Ms. Hassani’s claim for non-earner benefits is dismissed.
Guarantee shall pay to Ms. Hassani $23,323.50 for completion of a catastrophic impairment assessment proposed by Canadian Health and Wellness in a plan dated July 24, 2015.

EVIDENCE AND ANALYSIS:

On July 1, 2011, Ms. Hassani was cycling with friends in Pinery Provincial Park when she was struck by a car that had lost control while stunt driving. She was not wearing a helmet.

When paramedics arrived, they found Ms. Hassani to be conscious and alert. They found no evidence of head trauma. Neither Ms. Hassani nor her friends reported that Ms. Hassani had at any point lost consciousness. Ms. Hassani complained of pain to her buttocks and right knee. She was placed on a board and her neck braced for transport by ambulance to South Huron Hospital where she was triaged as urgent. Her presenting complaints were noted in the ER to be tail bone and right knee pain. According to ER records, Ms. Hassani denied that she had lost consciousness or that she had neck pain. Her GCS was 15 of 15.

The ER records also note that Ms. Hassani twice denied that she hit her head. She was discharged from the ER with a diagnosis of contusions, given a tensor bandage for her right knee, and told to take over-the-counter Tylenol for pain. She was also advised to return to the ER if she was worried or if her symptoms worsened.

Ms. Hassani claims that, as a result of the accident, she has developed impairments that have left her completely unable to carry on a normal life. These impairments, she submits, include headaches, vision problems, pain, anxiety and post-traumatic stress. Ms. Hassani also submits that the accident has affected her education, by delaying her studies and causing barriers that require a significant degree of support and accommodation. She claims that accident-related impairments will require that she take at least six years to complete a four-year university program.

At the time of the accident, Ms. Hassani was 20 years old and in high school.

At the ER

According to the ER nursing triage notes, which recorded the description of the accident, Ms. Hassani had no head trauma and did not lose consciousness. She was noted to have abrasions on her right lower leg. Her chief complaint was reported to be hip pain and leg pain.

Ms. Hassani was examined by Dr. Milne, an emergency physician. His notes indicate that Ms. Hassani denied that she had a head injury or that she lost consciousness. Despite the information collected by the paramedics and triage nurse that there was no head trauma, Dr. Milne testified that he nevertheless wanted to be certain and investigate whether Ms. Hassani may have sustained either a head or neck injury, given the nature of the accident.

Dr. Milne testified that head and neck injuries were high priority considerations when someone is hit by a car and so they were important to document, especially when Ms. Hassani was not wearing a helmet. He described his routine protocol in examining for evidence of a head or neck injury. He noted that Ms. Hassani’s GCS score was 15, the highest possible. Her pupils were responsive, she was oriented and able to provide a history of who she was, where she was and when. Using the Canadian CT head rules, he checked for what he described as evidence of concussion,³ including signs of any blood behind the ear drum that he said ould suggest basal skull fracture. Dr. Milne also completed a physical examination that included x-rays of Ms. Hassani’s neck, lower back and right knee. No fractures were identified. Based on his examination, he made a provisional diagnosis of contusions and noted that Ms. Hassani was being discharged with bruises and strains.

Dr. Milne acknowledged that it was possible for a person to hit their head and not recall it, and so at discharge, he described a standard set of instructions that he gave, which, as noted above, included instructions to return to the ER if symptoms worsened or if a patient was worried.

After the ER

Five days after the accident, on July 6, 2011,⁴ Ms. Hassani went to a walk-in clinic. Among her complaints was an intermittent pink haze or halo she says she saw around words or letters. She was referred to an optometrist for the visual disturbances and given a concussion questionnaire that she was to complete and return at her next visit.

Her next appointment at the walk-in clinic was on July 12, 2011 with family physician Dr. Esadeg. According to Dr. Esadeg’s notes about the accident, Ms. Hassani told him that she fell sitting and that she had no head trauma. He noted that she had seen an optometrist regarding the intermittent pink haze, and that her eye exam was normal. He noted normal reflexes, bruising, some stiffness and tenderness, but that Ms. Hassani was “looking well”, had a GCS of 15/15, and was not in any distress. Dr. Esadeg also noted that he discussed whiplash injury with Ms. Hassani and told her to return to the clinic or to the ER in the case of red flags.

Neither Dr. Esadeg’s, nor the clinic’s, notes record any follow-up regarding the concussion questionnaire that was given to Ms. Hassani to complete in her previous visit a week prior, and nothing about a concussion protocol or head injury. Ms. Hassani herself did not testify whether she completed the questionnaire or what follow-up there was, if any. According to Dr. Esadeg’s notes, he recommended Advil or Tylenol for pain and a further follow-up visit in 7-days, on July 22, 2011. For that follow-up appointment, Dr. Esadeg’s notes indicate that Ms. Hassani was a “No Show.”

Six weeks after the accident, in a statement she gave to the insurer on August 16, 2011, Ms. Hassani stated that she did not remember if she hit her head, but that she did not think she was unconscious. She stated that she was admitted to the South Huron Hospital and that, by the time of the statement she had still “not heard as to whether there were any fractures” following x-rays she stated were taken of most of her body.

Non-Earner Benefits

While the evidence closest to the accident suggests that Ms. Hassani did not hit her head, in the years following the accident, Ms. Hassani began to report to assessors that she did, or may have, hit her head. For his part, Dr. Milne, the ER physician, testified that it was possible for a person to hit their head and not recall it.

Dr. Romeo Vitelli, a psychologist who assessed Ms. Hassani in 2012, suspected that Ms. Hassani had a concussion, given her reported symptoms of dizziness and visual disturbances, and her memory and concentration difficulties. He agreed with comments made by Dr. Zakzanis, a neuropsychologist who completed an IE, that Ms. Hassani had a mild neurocognitive disorder without behavioural disturbances due to multiple etiologies. In 2012, orthopaedic surgeon and IE assessor Dr. Charendoff also opined that Ms. Hassani sustained a closed head injury in the accident.

Notably, however, Ms. Hassani’s assessors, although they had the ER records where there was no evidence of head trauma, as well as records of Ms. Hassani’s early denials of head impact, did not comment or apparently consider the inconsistency between the early medical records that disclosed no head trauma, versus Ms. Hassani’s later complaints that she struck or may have struck, her head.

In any event, although Ms. Hassani’s recollection or accounts of hitting her head evolved over time, whether or not she sustained a brain injury in the accident is not itself the primary consideration of the NEB test. The focus of the test is not simply the injury, but the impairment to one’s function caused by the injury. This necessitates a comparison between Ms. Hassani’s pre-accident and post-accident function.

For the reasons that follow, even if Ms. Hassani did hit her head, I find that she has not proved that she has suffered a complete inability to carry on a normal life as a result of, and within 104 weeks of, the accident.

The Schedule provides for the payment of non-earner benefits (“NEBs”) where an insured person who sustains an impairment as a result of an accident suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.⁵

Under s.3(7), a person suffers a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.⁶

Arbitral case law has consistently recognized the non-earner test to be especially stringent. The Court of Appeal in the decision of Heath v. Economical Insurance Company provided a number of general principles as the “proper approach” to interpret and apply the relevant sections of the Schedule when determining an insured person’s entitlement to NEBs.⁷ These include:

comparing an individual’s activities of daily living before the accident to those after the accident
considering those activities for a reasonable period preceding the accident, and not just a “snap-shot” of a particular good or bad time
considering all pre-accident activities ordinarily engaged in by the claimant (with greater weight potentially given to those activities identified by an insured person as being important to his or her pre-accident life)

The Court noted in Heath that it is not enough for an insured person to simply show a change in circumstances after the accident, but that the onus is on the insured person to establish that, as a result of the accident, he or she was “continuously prevented” from engaging in substantially all pre-accident activities: in other words, to an extent or degree that is and remains uninterrupted.

Before the accident

As noted, Ms. Hassani was a student at the time of the accident. She testified that she was an active young woman involved in various physical activities. She went camping and exercised. She socialized with friends and family and enjoyed travel.

Because Ms. Hassani was in high school, her academic life is central to any inquiry regarding her pre-and post-accident function.

Ms. Hassani started high school in 2005. Six years later, by the time of the accident in 2011, she had yet to complete Grade 12.

Although Ms. Hassani described her marks as “above average” in her August 16, 2011 post-accident statement to the insurer, her high school report cards show that her grades were anything but. In the courses that Ms. Hassani passed, her grades averaged in the mid- to low 60s. Her pre-accident high school report cards describe poor attendance and absenteeism, multiple

failed courses and withdrawals. Her report cards from 2005 to 2011 report:

incomplete or “rarely complete” homework assignments
poor focus and a lack of effort
poor work habits (Grade 9) and a need to have a “more mature attitude towards work” (Grade 10)
the need to “attend to personal learning rather than disturbing the class” and difficulty following directions (Grade 10)
that she was often unprepared for class, and had difficulties in subjects like math and science

In Grade 11, still before the accident, Ms. Hassani’s absenteeism increased while her grades continued to decline. She testified that she missed a lot of school in order to stay home to help around the house and to care for her mother, who had had surgery; Ms. Hassani could not, however, recall when that surgery took place. Meanwhile, when she saw the psychologist, Dr. Vitelli, during a psychological examination on June 22, 2012 (report dated June 25, 2012) she told him that it had taken her six years to complete high school because she had dropped out after Grade 10. According to Dr. Vitelli’s report, Ms. Hassani did not know why she dropped out, only that she had just stopped going to school, partly because her family had moved to a new house and she did not want to take two buses to get to school and so she failed her courses.

In Grade 12, her efforts and progress (in 2009) continued to be described as unsatisfactory and Ms. Hassani submitted many assignments late or not at all, and she was not meeting deadlines. She struggled with a full course load, reduced her course load and enrolled in summer school to complete or repeat courses she had failed during the regular term.

In 2011, she transferred schools from Forest Heights Collegiate Institute to the St. Louis Adult Learning & Continuing Education Centres (St. Louis Adult School). There, she continued her efforts to complete Grade 12 with a reduced course load, and taking as little as one course at a time. With a reduced course load and summer school, Ms. Hassani’s grades began to improve.

After the Accident

After the accident, in the fall of 2011, Ms. Hassani continued her efforts to complete Grade 12 at the St. Louis Adult School. As before the accident, her report cards show a reduced course load (1-2 classes per semester), but her grades began to improve. She repeated certain courses in summer school, and excelled.

In the spring of 2012, less than one year after the accident, Ms. Hassani successfully completed four Grade 12 courses. By this point, she did well enough to be accepted to the University of Toronto’s (UofT) architecture program, with a scholarship. Her boyfriend, Ameen Ahmed, testified that the architecture program is very prestigious, accepting only 40 applicants each year.

Ms. Hassani testified that, because of the accident, her university studies have been prolonged, and that a four-year program will take six years to complete. She also says that the accident left her having to take summer courses in university, which left her studying year-round rather than just in the fall and winter. However, before the accident, Ms. Hassani was also taking summer courses and repeating courses she had failed during the regular semester, and her completion of high school took far more than the standard four years.

Ms. Hassani maintains, however, that she has struggled in the architecture program, that because of accident-related impairments, she will need at least six years to complete what should be a four year program, and that, but for Mr. Ahmed’s assistance, she would be unable to complete or manage her courses. Both she and Mr. Ahmed testified that Ms. Hassani uses a standing desk because her pain prevents her from sitting for extended periods. Both testified that Ms. Hassani is unable to read on her own, and that, while she can dictate her work to Mr. Ahmed to type, it is Mr. Ahmed who has to read course materials and textbooks to Ms. Hassani. The result is that, while both started with a full course load, they have both since reduced their load from five to three, thereby delaying her anticipated graduation.

Ms. Hassani also testified that she sought accommodation from the UofT for her impairments. She testified that she first approached the student disability office in 2012, but that she only got general information. There is no record of any consultation in 2012.

On September 25, 2014, Ms Hassani went to the UofT student health clinic and reported that the accident has affected her schoolwork.⁸ According to the clinic records, in addition to pain in her shoulder, knees and ankles, Ms. Hassani reported memory loss a result of the accident. Ms. Hassani also saw a nursing student, M. Priestman, during this visit, to whom she reported that she “thinks she may have” hit her head. According to the clinic notes, Ms. Hassani also reported that she improved after a year of physiotherapy, but that she has ongoing symptoms that interfered with some of her athletic activities, such as her knee locking.

Ms. Hassani also reported to the student clinic that she came to Toronto (from Waterloo) in 2012 (to start university), and “was a lot better for past couple of years, save for an ongoing fear of cars” and a “low level of symptoms” that had worsened over the past six months, namely pain in her shoulders, neck and lower back that caused difficulty with sitting for more than an hour. At that visit, Ms. Hassani asked the clinic staff to complete an insurance form, but they declined, ostensibly because they had not known Ms. Hassani’s condition before the accident for comparison, and had no investigation or follow up since. Instead, Ms. Hassani was directed to her previous doctor, or to a physiatrist.

Next, on May 15, 2015, during a visit to the student clinic, Ms. Hassani complained of back pain and neck pain that she described as long ongoing following the accident that had improved after 1.5 years of physiotherapy but had worsened since. There was no mention of headaches or similar symptoms during this visit.

About nine months later, on February 9, 2016, Ms. Hassani went back to the UofT student health clinic and reported that she “thinks she has more difficulty reading” since the accident.

I accept that Mr. Ahmed has been of significant help and support to Ms. Hassani throughout university, where they met and began their relationship. He purchased a standing desk for her, helps carry her backpack and helps her with assignments. He reads lengthy texts to her and types her essays. However, regardless of Mr. Ahmed’s assistance, there is little evidence to find that Ms. Hassani’s trajectory in university was in any way hampered by the accident, especially when compared with her academic struggles before the accident.

Although she testified that she does not drive, especially on the highway, Ms. Hassani has resumed most of her pre-accident activities outside of academics. Ms. Hassani continued to travel, both with her boyfriend and on her own. After the accident, she traveled to Jamaica, to Japan to see old castles, to New York for art exhibits, and to Spain and Portugal on her own to see the architecture and a school, respectively. Except for pacing during long flights, I heard no evidence that Ms. Hassani had difficulties on those trips.

According to the medical records and Ms. Hassani’s testimony, in addition to school and travel, Ms. Hassani had returned to running, up to 30-40 minutes at a time, and resumed going to the gym.

There is no Disability Certificate (OCF-3) that supports that Ms. Hassani meets the non-earner test. The only one in evidence was completed on March 15, 2012 by the Activa Physio and Chiro Clinic (Activa), where Ms. Hassani received physiotherapy. The OCF-3 described that Ms. Hassani had low back pain; dislocation, sprain and strain of joints and ligaments of her (right) knee; Whiplash Associated Disorder II (WAD II) with complaint of neck pain with musculoskeletal signs; headache syndromes; generalized anxiety disorder; and post-traumatic stress disorder. The OCF-3 did not endorse that Ms. Hassani suffered a complete inability to carry on a normal life or that she sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. According to the OCF-3, the anticipated duration of Ms. Hassani’s accident-related disability was 9-12 weeks. The OCF-3 also endorsed that Ms. Hassani was able to continue with her studies.

Neurologist Dr. Gomez-Vargas assessed Ms. Hassani and testified as an expert in neurology. He accepted that Ms. Hassani hit her head in the accident based on her self-report. He opined that, based on her reports to him that she occasionally loses focus and “zooms out” for brief periods, she may have a seizure disorder. He is the only physician who suggested that Ms. Hassani may have a seizure disorder, although he never actually diagnosed one, opining only that it should be queried. On this basis there is no evidence to conclude that the accident either caused such a disorder or that Ms. Hassani’s cognitive challenges with her studies are attributable to it, especially given her difficulties with school before the accident.

On the evidence before me, I find that, before the accident, Ms. Hassani struggled in school. Her grades were poor, she failed and withdrew from courses, had high absenteeism and her report cards showed struggle with completing assignments and focus. Although she blames the accident for causing her to take six years to complete a four year degree and thus prolonging her tenure in university, before the accident she was on track to take seven years to complete high school. After the accident, she continued with a reduced course load and excelled to the point that she was awarded a scholarship to an exclusive university program. She reported to clinics and assessors that she had improved physically, and has returned to most of her pre-accident activities, although with some pain. She also continued to travel after the accident.

I am not persuaded on the evidence before me that Ms. Hassani’s accident-related impairments and pain caused her to be continuously prevented from engaging in substantially all pre-accident activities to an extent or degree that is and remains uninterrupted. For these reasons, I find that Ms. Hassani has not met the test for entitlement to NEBs.

Funding for CAT Assessment

Ms. Hassani seeks funding in the amount of $23,323.20 for a multidisciplinary assessment in support of a catastrophic impairment designation.

Section 45 of the Schedule allows an insured person who sustains an impairment as a result of an accident to apply to the insurer for a determination of whether the impairment is a catastrophic impairment. Section 25(1) at paragraph 5 allows for the payment for reasonable fees charged for preparing an application under section 45 for a determination of whether an insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.⁹

Chiropractor Dr. Rhuel Maano submitted an OCF-18 dated January 5, 2015 on Ms. Hassani’s behalf that recommended occupational therapy, chiropractic, neurological and psychological assessments at a cost of $2,000.00 for each. Dr. Maano wrote that it has been more than three years since the accident, and that Ms. Hassani had persistent post-traumatic injuries followed by an apparent plateau. He recommended a comprehensive multidisciplinary assessment to determine whether Ms. Hassani sustained a catastrophic impairment.

Guarantee conducted a paper review and, by letter dated July 24, 2015, notified Ms. Hassani that it was denying funding for the proposed assessments.

On December 23, 2016, by OCF-19¹⁰ completed by Dr. Gomez-Vargas, Ms. Hassani submitted an application to Guarantee for a determination that she was catastrophically impaired.

Guarantee advised Ms. Hassani by letter dated January 6, 2017 that it did not accept her impairment as catastrophic and denied the application. In the same letter, Guarantee notified Ms. Hassani that, in accordance with section 45(3)(b) of the Schedule, it would require her to attend IEs to “assist us in determining if [her] impairment is a catastrophic impairment.”

The result is that Ms. Hassani, while unable to fund her own assessments, must attend IEs following Guarantee’s denial of her OCF-19.

Fundamental to any administrative process, is the requirement that it be fair.¹¹

Guarantee submits that ss.25(1)(5) does not apply because the fees for the CAT assessment have not yet been incurred. Guarantee argues that it makes no sense to treat this issue as an interim expense because the question of catastrophic impairment is not in dispute in this arbitration and will never be in dispute in this arbitration because of recent changes to the Schedule that require disputes after April 1, 2016 to be resolved before the Licence Appeal Tribunal (“LAT”).

Guarantee also submits that neither Dr. Maano’s OCF-18 nor his report state that he is seeking an assessment or funding for an assessment to prepare an application under section 45 in order to complete an OCF-19, but that he simply recommends a comprehensive multidisciplinary assessment to determine catastrophic impairment, which it says does not engage section 25(1)(5).

Ms. Hassani submits that, chronologically speaking, by the time the insurer’s CAT IEs are completed, the proposed CAT assessment will be tantamount to a rebuttal assessment.

Ms. Hassani’s application for arbitration was filed in 2014, before changes to the Insurance Act required disputes to be resolved before the LAT. I find that fairness must operate as a guiding principle and that to deny Ms. Hassani funding for a CAT assessment, essentially in response to the insurer’s IEs, would be unfair and prejudicial: it would leave her without funding for her own assessments and give the insurer the unfair advantage of benefiting from her lack of financial resources. It may also put her in the position of having to bring this issue before the LAT as an interim expense in accordance with ss. 3(8), when the issue was properly put before this Commission at the time her application was filed.

I agree with Ms. Hassani’s submission that, by the time Guarantee’s CAT assessments are completed, Ms. Hassani’s will be like rebuttal reports. As set out above, at the time of this hearing, Guarantee was conducting its own IEs, so that, by the time they are completed and Ms. Hassani’s own assessments can be conducted, those assessments will be in the nature of rebuttal reports. Arbitral case law has held that the right to obtain a rebuttal assessment to respond to CAT IEs and to have it paid by the insurer is a substantive right.¹²

In finding that a complex rebuttal report was not only reasonable but justified, Arbitrator Wilson wrote in R.J. and Dominion¹³ that “a rebuttal report necessarily takes on the complexity of the report whose findings it addresses” and “should reflect the complexity and importance of its subject matter.”

In that case, Arbitrator Wilson wrote that while funding of seven different stages of reports was a perhaps cumbersome way to achieve fairness, it was the “only plausible method of proceeding, given the hard limits on reports set out in the Insurance Act and its regulations.” He went on to say that to so order “would at least level up the playing field adequately enough to permit [the applicant] to provide the insurer with a cogent rebuttal of the catastrophic reports and to allow the Insurer to make a determination as to catastrophic impairment based on more complete evidence.”

Guarantee also argues that the expense was not incurred and so is not payable.

The Divisional Court in Belair Insurance Company v. McMichael¹⁴ cited with approval the comments in Wawanesa Mutual Insurance Company v. Smith¹⁵ that an insured person need not finance a claim in order to secure the benefits to which she is entitled. It was not even necessary for the insured to actually receive the items or services or to become obliged to pay for anything. It was sufficient if the reasonable necessity of the service or item and the amount required could be determined with certainty.

In Monks v. ING Insurance Co. of Canada,¹⁶ the Court of Appeal wrote that a broad interpretation of the word “incurred” under the Schedule is consistent with the policy objective that accident victims promptly receive the accident benefits to which they are entitled and that it also prevents insurers from benefitting from an insured’s lack of financial resources and that the “legislation was designed for the protection of the insured and should be construed in the way most favourable to him.”¹⁷

I find that fairness must operate as a guiding principle and that, to deny Ms. Hassani reasonable fees to conduct her own assessments, when, at least chronologically, they will be required to respond to the IEs and when the constituent reports of her proposed multidisciplinary assessment do not exceed the amounts prescribed in the Schedule ($2,000.00 per report) would be unfair.

Moreover, it is plain from the OCF-18 that the proposed assessments are catastrophic assessments by various healthcare providers (including orthopaedic, psychological, neurological, and chiropractic) which would be for none other than an application for catastrophic determination.

For these reasons, I find that Ms. Hassani is entitled to funding for the proposed catastrophic assessments.

EXPENSES:

In view of the mixed result, I find that the parties should each bear their own expenses of this arbitration hearing and make no order for expenses.

January 5, 2018

Jessica Kowalski Arbitrator

Date