Neutral Citation: 2018 ONFSCDRS 6

FSCO A14-000677

BETWEEN:

FROGHOLLAH SADAT Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: September 19-21, 26-28, October 3-6 and October 24, 2017 in Dundas, Ontario. Written submissions received to December 11, 2017.

Appearances: Samia Alam for Mr. Sadat William G. Woodward for TD General Insurance Company

Issues:

The Applicant, Froghollah Sadat, was injured in a motor vehicle accident on October 20, 2007. He applied for and received statutory accident benefits from TD General Insurance Company ("TD"), payable under the Schedule.¹ TD paid medical benefits to non-catastrophic limits. Mr. Sadat made an application to TD for a determination of catastrophic impairment. He has also applied for weekly benefits. TD arranged for Mr. Sadat to be assessed by a team of insurer examiners who concluded that Mr. Sadat was not catastrophically impaired. Mr. Sadat's assessors reached the opposite conclusion. The parties were unable to resolve their disputes through mediation, and Mr. Sadat 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 Mr. Sadat entitled to a weekly non-earner benefit of $185.00 per week from July 17, 2009 to date and ongoing?
Did Mr. Sadat sustain a catastrophic impairment as a result of this accident as defined in the Schedule?
Is Mr. Sadat entitled to housekeeping and home maintenance benefits from October 20, 2007 to date and ongoing?
Is Mr. Sadat entitled to interest on any outstanding benefits?
Is TD General liable to pay interest on the AssessNet account from October 2, 2015 to date?
Is either party required to pay the other's expenses of this arbitration?

Result:

Mr. Sadat is entitled to a weekly non-earner benefit of $185.00 per week from July 17, 2009 to date and ongoing.
Mr. Sadat sustained a catastrophic impairment within the meaning of ss.2(1.2)(g) as a result of a class 4 marked impairment due to mental or behavioural disorder.
Mr. Sadat is not entitled to housekeeping and home maintenance benefits from October 20, 2007 to date and ongoing.
Mr. Sadat is entitled to interest on outstanding benefits.
Mr. Sadat is not entitled to interest on the AssessNet account.
TD shall pay to Mr. Sadat his expenses of this arbitration fixed in the amount of $67,497.07, inclusive of HST, plus disbursements totalling $10,624.47, inclusive of any applicable taxes.

Overview

On October 20, 2007, Mr. Sadat's car was rear-ended by another vehicle while stopped at a red light. He claims that he sustained a labyrinthine concussion in his inner ear that has led to complete hearing loss in his left ear and partial hearing loss in the right.

Following the accident, TD funded various treatments for Mr. Sadat. These included paying for his hearing aids and replacement hearing aids, psychological treatment, as well as treatment with a speech language pathologist, all of it intended to help Mr. Sadat cope with and adapt to the loss of his hearing. TD ceased funding treatment once Mr. Sadat's non-catastrophic policy limits for medical and rehabilitation benefits were exhausted.

The hearing loss is the primary issue that gives rise to this arbitration and is the primary factor in the emotional and mental health issues that Mr. Sadat has complained of or developed in the ten years since the accident.

TD now raises the issue of whether the accident even caused the hearing loss. Although TD states that there is good reason to question whether the accident caused the hearing loss, it did not call evidence to challenge causation. Moreover, had causation been an issue, I question why TD would wait until after Mr. Sadat's medical and rehabilitation benefits were exhausted on something that it now says was not caused by the accident. In any event, given that causation was raised as an issue during the hearing, I discuss it below.

Mr. Sadat himself initially did not associate his hearing loss with the accident. He did not report it right away, because the hearing loss was not acute and he was focused on his immediate pain. The ER record noted no head injury and that Mr. Sadat's presenting complaints were of back, neck and shoulder pain. He was discharged from the hospital with a diagnosis of soft tissue injury and referred to his family doctor for follow-up. His initial complaints to his family doctor, Dr. Roopa Arora, were also related to his physical pain.

Mr. Sadat testified that his hearing began to diminish very soon after the accident. He first noticed a problem shortly after the accident when he found some dried blood on a Q-tip. As his hearing decreased in the following weeks, he testified that he thought it was temporary: he thought his ears were just plugging up and gave the example of rapid altitude changes, like sometimes going up or down the Hamilton mountain. He testified that he never thought it would be permanent.

He began to report his hearing loss to doctors and assessors in the weeks and months after the accident. About one month after the accident, on November 22, 2007, chiropractor Dr. Joe Vomvas conducted an in-home assessment of Mr. Sadat. In his report (dated November 22, 2007), Dr. Vomvas wrote that, "Most recently Mr. Sadat has noticed a little bit of hearing loss on his right side and is seeking medical attention for it."²

About three months later, on February 13, 2008, Mr. Sadat had a psychological assessment with psychologist Dr. Romeo Vitelli where he again reported decreased hearing post-accident. In his report dated February 25, 2008, Dr. Vitelli wrote that, in addition to physical pain and bruising, Mr. Sadat reported a severe headache, decreased hearing in his left ear and feeling like he was going to fall over, but that his family doctor told him to wait a while to see if his symptoms would go away.

During a neurological assessment on April 7, 2008 with neurologist Dr. Majl, Mr. Sadat again reported post-accident hearing loss. Dr. Majl's April 14, 2008 report included hearing loss under Mr. Sadat's post-accident symptoms, noting that Mr. Sadat "continues to complain of decreased hearing in the left ear since the accident."

In a visit to Dr. Arora (the family doctor) on May 22, 2008, Dr. Arora noted that Mr. Sadat reported reduced hearing in his left ear since the accident. There is no note of what, if anything, was done to address Mr. Sadat's concerns at that time.

Mr. Sadat's complaints of hearing loss continued until eventually, on October 4, 2010, Dr. Arora referred him to otolaryngologist Dr. Jason Archibald.

In the meantime, Mr. Sadat was struggling at work and at home. He returned to work and tried to cope with his hearing loss on his own. One of his jobs was at a Pizza Pizza restaurant, where he says he encountered difficulties as he started getting orders wrong and had to ask people to repeat their orders, to the frustration of customers.

Mr. Sadat saw Dr. Archibald in late 2010. In a clinic note dated December 21, 2010, Dr. Archibald wrote that Mr. Sadat reported that he thought he lost his hearing acutely during the accident and that, over the month following, his hearing declined further.

Dr. Archibald's report is consistent with the earlier assessments closer to the accident, starting with Dr. Vomsas, when, one month after the accident, Mr. Sadat was reporting hearing loss. I also find that Mr. Sadat's explanation for why he did not report the hearing loss immediately was reasonable: he felt his ears were plugged and that it was only temporary. I also find that a one month delay in reporting the hearing loss of one month not to be significant, or that it is not unreasonable that Mr. Sadat did not expect that he would go deaf.

In his December 21, 2010 clinic note, Dr. Archibald wrote that he suspected Mr. Sadat's hearing loss to be secondary to head trauma with a cochlear concussion. He described the labyrinthe as the inner ear system that contains the cochlea, and that a cochlear concussion occurs in the inner ear where the cochlea, which contains the organs and fluids that enable a person to hear, shakes, causing hearing loss by breaking the hair cells responsible for picking up sound. He distinguished this type of concussion from a brain injury because it occurs in the inner ear and not the brain.

Most notably, Dr. Archibald (who testified as an expert in otolaryngology) testified that this type of inner ear concussion can occur without significant trauma. He testified that people can have close concussion imbalance from hitting their heads or from something as mild as whiplash. Although he understood from Mr. Sadat that he had hit his head on the driver's side window, Dr. Archibald also testified that Mr. Sadat had no other risk factors for the hearing loss: no infections, family history,³ noisy jobs or hobbies, medications that could be toxic to hearing, or an illness like meningitis that could cause hearing loss. Dr. Archibald testified that he could find no reason for Mr. Sadat's hearing loss besides the accident.

In an addendum report dated August 17, 2017 by Dr. Mendelsohn, an ENT for TD's catastrophic ("CAT") assessment team, he wrote that he agreed "that the hearing loss was because of the labyrinthine concussion injury from the indexed motor vehicle accident and that the hearing loss is permanent."

Based on Mr. Sadat's complaints of hearing loss beginning soon after the accident, on the fact that Mr. Sadat had no prior issues with his hearing and no other risk factors, on Dr. Archibald's testimony, and on Dr. Mendelsohn's opinion in his addendum report, I find that the accident caused a concussion in Mr. Sadat's inner ear that led to his complete hearing loss on the left side and significant partial hearing loss on the right.

Non-earner benefits

The Schedule provides for the payment of non-earner benefits ("NEBs") where an insured claimant 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.⁴

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.⁵ It is not sufficient to demonstrate changes in one's life. The insured person must establish that those changes have continuously prevented him from engaging in substantially all of his pre-accident activities.

The Court of Appeal in the decision of Heath v. Economical Insurance Company⁶ set out 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. These include:

i. comparing an individual's activities of daily living before the accident to those after the accident. This follows from the language of ss. 12(1), and there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant's pre- and post-accident activities is unnecessary, having regard to the claimant's post-accident condition;

ii. considering those activities for a reasonable period preceding the accident, and not just a "snap-shot" of a particular good or bad time;

iii. considering all pre-accident activities ordinarily engaged in by the claimant (with greater weight potentially given to those activities identified by the claimant as being important to his or her pre-accident life);

iv. it is not enough for a claimant to simply show a change in circumstances after the accident. The onus is on the claimant 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;

v. the term "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. The manner in which an activity is performed and the quality of performance of post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity.

The Court of Appeal confirmed that the test is subjective and each case has to be evaluated on its own facts.

Mr. Sadat's impairment is permanent. Dr. Archibald testified that there currently exists no surgical or other intervention that can restore Mr. Sadat's hearing.

In 2011, Mr. Sadat was fitted with a bi-CROS hearing aid which reroutes sound from the left ear to the right ear, and also amplifies sound to the right ear.

Without hearing aids, Mr. Sadat is significantly and continuously restricted. His ability to work and to function in his day-to-day life are owed entirely to his use of hearing aids. Without them, his ability to engage in his daily life would undoubtedly deteriorate. He has become depressed. Most, if not all, of Mr. Sadat's daily tasks have been affected by his hearing loss. The most mundane and routine tasks, such as going to the grocery store or bank, have become stressful. In addition to assistive devices, Mr. Sadat relies on ongoing psychological treatment to manage his anxiety and depression so that he can deal with the internal and external stresses he faces in going about his daily activities.

Because of the accident, Mr. Sadat has permanently lost one of the most fundamental components of daily living – the ability to listen and receive and share in everyday communication.

Return to Work

Mr. Sadat was a hardworking individual who maintained amiable relationships with his employers. Before the accident, Mr. Sadat was working two jobs, one at Pizza Pizza and another at a used car lot in Hamilton. He worked five to six days per week. Mr. Sadat returned to his job at Pizza Pizza approximately three months after the accident. He struggled with customer interaction. He testified that he mixed up orders because he misheard them. His hours decreased but he enjoyed good relations with the franchise owners, who tried to accommodate him. Later, however, Mr. Sadat testified that new owners took over the Pizza Pizza who were unwilling to accommodate his hearing impairment. He testified that the previous owners sympathized with Mr. Sadat's position and hired him to work at their gas station business, doing stocking and inventory – work that did not require customer interaction – but he was eventually terminated after about a year.

He continued to work at the used car lot, E&Z Used Auto Sales, and in mid-2012, the owner bequeathed the business to Mr. Sadat. He changed the name to Sadat Auto Sales which he continues to own and operate.

Income tax returns for the business show steady growth in inventory and sales year over year.

I find, however, as noted above, that Mr. Sadat's ability to return to work and to operate his business is owed entirely to his reliance on hearing aids, and to the treatment he has received since the accident. Even with the hearing aids, Mr. Sadat struggles with outside noise on the car lot, has less interaction with customers and buys most of his used cars online without inspecting them because he can do it from the quiet of his office.

Life at home and in the community

By all accounts, Mr. Sadat had an ordinary, busy work and home life with a wife and five children.

The hearing loss has affected Mr. Sadat's entire family. His wife and three of his children (sons Omar and Omron, and daughter Sahar) testified that Mr. Sadat went from being active, engaged, happy and helpful to moody, withdrawn, irritable and quick to anger. He has become intolerant of the noise made by his children, is overwhelmed by too much noise and often isolates himself by retreating alone to his room.

Before the accident, Mr. Sadat got up early most mornings to jog, came home, showered, fixed breakfast for his children before seeing them off to school. Although he worked two jobs, he was typically home in the morning. After going to the car lot, he would come home before going to his job at Pizza Pizza. Sundays were reserved for family time. He was also actively involved in his mosque, and assisted with building projects there. His children testified that he always helped neighbours and built things at home, like their basement shelving.

After the accident, Mr. Sadat began to withdraw. He became insecure about his hearing loss and depressed when he learned that it was permanent. He began seeing a psychologist, Dr. Bruce Baxter, in November 2012. Since then, he has been seeing Dr. Baxter on a regular basis, several times a month. This treatment has been continuously funded by TD until recently, when TD advised Mr. Sadat that his policy limits had been exhausted.

Dr. Baxter continues to treat Mr. Sadat without charge out of concern that without treatment, Mr. Sadat's symptoms will regress. I have given more weight to Dr. Baxter's evidence because he has treatment Mr. Sadat consistently since 2012 and has had insight into Mr. Sadat's progress over the years and his post-accident struggles.

Dr. Baxter described Mr. Sadat as a passive individual who did not readily seek medical attention. As a result of the hearing loss, Dr. Baxter opined that Mr. Sadat developed psychological impairments that include anxiety, major depression and post-traumatic stress disorder. He testified that Mr. Sadat's overall condition remains fragile and vulnerable and that it would not take much for Mr. Sadat to relapse.

Dr. Baxter further testified that Mr. Sadat is very internally focused. He is persistently anxious about re-injury. He struggles with anxiety and because he keeps stresses to himself, his internal pressures build. He copes by isolating himself from family and friends. He is self-conscious about his hearing loss.

Dr. Baxter also explained that Mr. Sadat has an exaggerated fear of being attacked. Mr. Sadat seemed focused on situations in his day-to-day life that turned hostile. For example, both Mr. Sadat and Dr. Baxter testified about incidents at the grocery store or bank that became antagonistic because Mr. Sadat could not hear someone speaking to him from behind or could not communicate effectively. Mr. Sadat reported other instances to Dr. Baxter where he could not discern a police officer's questions during a random RIDE stop, leading the officer to think him intoxicated, and being stopped by police for not giving way to an emergency vehicle when he did not hear the siren.

Dr. Baxter testified⁷ that Mr. Sadat ruminates on these types of incidents for hours and days, which causes him to further withdraw and feel self-conscious.

In conjunction with his psychological therapy, Mr. Sadat also began to see a speech language pathologist, Melissa Kiley, who worked with him on coping skills and strategies, and taught him to read lips.

The hearing aids themselves have been a source of some angst for Mr. Sadat. Initially, they were hit-and-miss, not lasting as long or working as well as expected until eventually Mr. Sadat was fitted with the bi-CROS aids he wears today. Dr. Baxter testified that Mr. Sadat nevertheless continues to worry about them breaking or not working. They need batteries replaced every three or so months, and have a limited lifespan. Dr. Baxter testified that without hearing aids, however, Mr. Sadat's situation would be "catastrophic".⁸

The degree and impact of Mr. Sadat's hearing loss cannot be downplayed. But for the hearing aids, Mr. Sadat cannot hear out of his left ear and his hearing is restricted in the right. Without his hearing aids, he cannot do things most people take for granted. Examples before me included that he:

cannot hear a smoke alarm
cannot hear his alarm clock
cannot hear a knock on his door or the doorbell ring
cannot hear the telephone ring
cannot hear his children
cannot have a conversation that most of us would take for granted because he has to always face the other person, ask for things to be repeated
cannot engage in group conversations or in conversations in noisy environments
cannot hear well when there is background noise
cannot hear people behind him at the grocery store or communicate easily with a bank teller
cannot hear a police or emergency siren while driving
cannot hear the beeping sound of vehicles reversing; and,
did not hear gunshots outside his house while he was home but not wearing his hearing aids.

In addition to the hearing aids, Mr. Sadat relies on other devices, such as visual alarms and smart phone applications to function. Ms. Kiley, the speech language pathologist, gave evidence that Mr. Sadat's situation cannot be easily alleviated by handing out a 'disability card' during social interactions that would identify him as a person with a hearing impairment. She testified that this is not a simple fix because Mr. Sadat has different needs during different situations that cannot be solved using a simple card. The use of such a card would, in my view, underscore that Mr. Sadat has a significant functional limitation as a result of the accident.

According to Dr. Archibald, without hearing aids, Mr. Sadat would struggle, and not only with employment. He testified that Mr. Sadat's life would be challenging without hearing aids, and that, in his experience, life with single-sided deafness can be quite debilitating and that people did well in quiet environments with no background noise. However, with background or environmental noise, it becomes challenging to localize sound (i.e. to hear where a sound is coming from) and to discriminate speech (i.e. the clarity of people talking). He testified that the only thing Mr. Sadat's hearing aid helps him with is hearing sounds from the left side (through the right ear by relay) but does not reduce difficulties in noise-rich environments.

While we can do a line-by-line analysis of his chores or family outings or number of cars sold, I find this would not result in a fair representation of Mr. Sadat's post-accident life. To be complete, any analysis has to take into account a person's quality of life and the diminution of the overall quality of in considering the NEB test. On the particular facts of this case, a comparison of Mr. Sadat pre-and post-accident life must include not only his ability to function but must take into account day-to-day experiences that may not be obvious but that are nonetheless fundamental, such as such as hearing one's children and engaging with them as before, hearing an alarm clock, hearing a tea kettle, or hearing a friend. I find that these considerations fall squarely into the principles enunciated in Heath and that Mr. Sadat cannot fully engage in substantially all of his activities in the way he did before the accident, and is significantly impaired without them. For all of these reasons, I find that Mr. Sadat has proven entitlement to NEBs.

Catastrophic Impairment

The 1996 Schedule sets out several criteria for an accident-related impairment to be considered catastrophic. Mr. Sadat has advanced his application for catastrophic impairment on two grounds.: ss. 2(1.2)(f) and (g) .

Criterion (f): Whole Person Impairment

Criterion (f) defines catastrophic impairment as "an impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person."

Mr. Sadat's CAT assessors calculated his whole person impairment (WPI) rating to be 55%. TD's assessors concluded it to be 31%. For the reasons that follow, I find that Dr. Adriano Persi (chiropractor and WPI rater) did not follow the Guides when rating for WPI and I prefer the WPI ratings by Dr. Ben Meikle (the IE physiatrist and WPI rater).

I find that Mr. Sadat's primary impairment is his hearing loss, which both sets of assessors rated Mr. Sadat's hearing loss at 14%.

In order to reach a 55% rating, chiropractor Dr. Persi added ratings for chronic pain (3%), headaches (10%), spine (15%), which I find were not calculated in accordance with the Guides. Dr. Persi's 3% rating for chronic pain ignored that the 4th edition of the Guides does not assign impairment rating numerical values for pain, instead treating pain as an anticipated component of Mr. Sadat's physical complaints.

With respect to headaches, Dr. Persi testified that if an impairment is not listed in the Guides, it is appropriate to use an analogy. He applied a rating of 10% for headaches using the analogy of bilateral occipital neuralgia. However, the Guides specifically list headaches (at pages 311-312) and do not allow for an impairment rating. Dr. Meikle testified that if the analogy used by Dr. Persi was appropriate, the maximum rating would be 5%, but that applying the Guides properly would result in a 0% rating for headaches in Mr. Sadat's case.

Dr. Persi also assigned a 15% rating for the spine. In support of this rating, Mr. Sadat relies on the decision in Jaggernauth v. Economical Mutual Insurance Co.⁹ in which Arbitrator Feldman noted that the applicable impairment rating for fractures is located in Table 70 (Spine Impairment Categories for Cervicothoracic, Thoracolumbar, and Lumbosacral Regions) on page 108 of the Guides. I agree with TD that the decision in Jaggernauth was made to ensure that an individual who suffered an objective orthopaedic injury would not receive unfair treatment simply because the condition had healed.¹⁰ That is not the case here. Mr. Sadat did not suffer any objective orthopaedic injury, and so I agree with TD that his condition does not fit within Table 70.¹¹

Also, among various assessments, Mr. Sadat was noted to have functional ranges of motion and limitation was generally related to complaints of pain at the end ranges, and, again, pain itself is not rateable. Even the applicant's assessors found normal ranges of motion. Without consistent findings, and with no objective spinal injury, I find Dr. Persi's rating of 15% for the spine to be excessive and not supported by the available evidence.

After removing the 15% rating for spine and reducing the ratings for pain and headache, Mr. Sadat's impairments do not combine to meet the 55% impairment of the whole person required by under criterion (f).

Criterion (g): the Four Spheres of Function

Criterion (g) defines catastrophic impairment as "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."

Mental and behavioural disorders under criterion (g) are not assigned a percentage rating by the Guides. Rather, they are rated within four spheres of functioning using a five-level scale.

On the totality of the evidence, I find that Mr. Sadat's primary impairment is the hearing loss and the consequences that arise from it. The most significant of these are psychological and affect his ability to function in every aspect of his life.

The Guides (at Chapter 14/301) define a Class 4 Marked Impairment as one in which "Impairment levels significantly impede useful functioning."¹²

For the purposes of the Guides, when an impairment is associated with an obstacle to useful activity, a handicap may exist. An impaired individual is handicapped if there are obstacles to accomplishing life's basic activities that can be overcome only by compensating in some way for the effects of the impairment. According to the Guides, such compensation or accommodation often entails the use of assistive devices; included in the list of assistive devices are hearing aids.

Both CAT teams agreed that Mr. Sadat had a Class 3 Moderate Impairment in the area of Concentration, Persistence and Pace. Overall, they assigned the following ratings under each sphere:

Sphere of Function	Applicant's CAT Report (AssessNET)	IE CAT Report (Sibley)
Activities of daily living	Class 3: moderate	Class 2: mild
Social functioning	Class 4: marked	Class 2: mild
Concentration, Persistence and Pace	Class 3: moderate	Class 3: moderate
Deterioration or decompensation in work/work-like settings (adaptation)	Class 4: marked	Class 3: moderate

Because both sets of assessors concluded that Mr. Sadat had a Class 3 Moderate Impairment in the sphere of Concentration, Persistence and Pace, and his own assessors concluded that his impairment in ADLs was moderate, it is unnecessary to consider either of these spheres and I will therefore deal only with the issue of marked impairment.

In the sphere of Social Functioning, Mr. Sadat's hearing loss significantly impedes useful functioning without the help of hearing aids and other assistive devices. I therefore find that he meets the criterion (g) catastrophic definition in the 1996 Schedule because he has a marked impairment in the sphere of Social Functioning.

On the question of marked impairment in Social Functioning, I prefer the evidence of Mr. Sadat's assessors.

Dr. Persi noted that his assessors found that Mr. Sadat continues to have difficulty with anxiety when dealing with his family and the community. He has recurrent confrontations and avoids interactions with others for fear of being ridiculed. He avoids situations which lead to confrontation and continues to have poor self-esteem and a increased impatience.

These conclusions are consistent with the opinion of Dr. Baxter, who has been treating Mr. Sadat since 2012, as well as with Mr. Sadat's evidence and that of his family members who testified.

As part of Mr. Sadat's CAT assessment, neuropsychologist Dr. Ayse Unsal completed neuropsychological assessments of Mr. Sadat on July 23 and November 12, 2015. Dr. Unsal opined that Mr. Sadat continues to struggle with depression, anxiety, chronic pain, headaches and poor concentration and that he:

avoids social situations and interactions with others due to his hearing impairment and associated anxiety and would separate himself or act out
fears ridicule and making mistakes
ruminates over negative incidents over hours or days, and isolates himself from his family by retreating to his room.

Her conclusions were consistent with Mr. Sadat's evidence and Dr. Baxter's opinion.

I have preferred Dr. Unsal's opinion over Dr. Spivak's and Dr. Zakzanis', the IE psychiatrist and psychologist, respectively. Dr. Konstantine Zakzanis spent little time with Mr. Sadat compared with Dr. Unsal and, although his tests results were similar to Dr. Unsal's, he did not review Dr. Baxter's records, although he conceded that they would have been 'nice to have'.

Dr. Mitchell Spivak, psychiatrist, who provided the CAT IE ratings for the four spheres, concluded that Mr. Sadat had a Class 2 Mild Impairment in the sphere of Social Functioning but gave very little support this rating. He agreed with Dr. Baxter's diagnoses of depression and anxiety and noted that Mr. Sadat does ruminate over interactions with others and struggles with depression. He based his conclusion on one interview of between 50 and 90 minutes in length, without a review of the records of Dr. Baxter, Ms. Kiley or of Mr. Sadat's occupational therapist, who wrote about Mr. Sadat's interactions in the community in her own report.

Nevertheless, Dr. Spivak conceded that Mr. Sadat's social functioning would be significantly impacted without his hearing aids. Dr. Baxter, Ms. Kiley and Dr. Archibald each opined that without his hearing aids, Mr. Sadat's prognosis is poor. Dr. Archibald testified that his employment options outside of self-employment would be limited, and that he would face prejudice if he were to try to find alternative employment.

I disagree with TD's submission that, although Mr. Sadat's hearing loss creates some difficulties for him in some situations, the fact that he has learned and employed a number of strategies to address these problems does not support a finding that these issues significantly impede Mr. Sadat's ability to interact appropriately and effectively with other individuals.

Social Functioning refers to an individual's capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks. Impaired social functioning may be demonstrated by a history of altercations, fear of strangers, avoidance of interpersonal relationships, and social isolation.¹³

These examples listed in the Guides illustrate precisely the troubles Mr. Sadat testified that he experiences on a daily basis. His situation is far worse without his hearing aids. The Guides at Chapter 2 state that if an individual's assistive device can be removed or its use eliminated relatively easily, the organ system should be tested and evaluated without the device. For example, a hearing aid should be removed before auditory acuity is tested.

Chapter 14 also recognizes that an individual's own description of his or her function and limitations is an important source of information, and that information from non-medical sources such as family members may be useful in indicating the level of functioning and the severity of the impairment.

There is no dispute regarding the degree of Mr. Sadat's hearing loss. I find that Dr. Persi's conclusion that he suffers a marked impairment in Social Functioning to be consistent with Mr. Sadat's evidence, the evidence of his family and treating practitioners, and with my observation of Mr. Sadat's apparent helplessness and inability to hear during the hearing when he removed his hearing aids at the request of his counsel. For these reasons, I find that Mr. Sadat has a marked impairment in Social Functioning and that he is therefore catastrophically impaired as a result of this accident.

Concentration, Persistence and Pace and Deterioration or Decompensation in a Work or Work-like Setting

Because I found that he suffers a Class 4 Marked Impairment in the sphere of Social Functioning, it is unnecessary to consider the next sphere (Concentration, Persistence and Pace and Deterioration or Decompensation in a Work or Work-like Setting, commonly referred to as "Adaptation") in which his CAT assessors found Mr. Sadat to have a marked impairment.

In any event, I find that he also suffers a marked impairment in this sphere. I make this finding despite Mr. Sadat's return to work, and for the reasons set out under the NEB claim: namely, that Mr. Sadat is only able to work because of assistive devices and treatment he has received to date, without which his function at work and work prospects would be severely restricted.

Dr. Persi's conclusion that Mr. Sadat suffers a Class 4 Marked Impairment in Adaptation is supported by the bulk of the evidence before me:

Dr. Archibald testified that without hearing aids, Mr. Sadat would face significant work challenges and would face prejudice and difficulty finding regular employment. Even in his self-employment situation, Dr. Archibald conceded that environmental noise posed limitations for Mr. Sadat, even with hearing aids
Dr. Baxter also testified that environmental and background noise could be challenging for Mr. Sadat when dealing with customers
Mr. Sadat still has to face people favouring his right ear and needs things to be repeated.

For the same reasons discussed under NEBs, above, I find that Mr. Sadat's hearing impairment significantly impedes useful functioning without the use of his hearing aids and that, but for the hearing aids, Mr. Sadat has a Class 4 Marked Impairment in the sphere of Adaptation.

Housekeeping and Home Maintenance Benefits

Housekeeping and home maintenance benefits are payable for the first-two years post-accident for non-catastrophic claims. Mr. Sadat applied for and received housekeeping benefits for four weeks. He made no further request or application for housekeeping benefits until this application for arbitration was commenced in 2014.

I accept that Mr. Sadat provided some assistance around the house, such as with cooking, or clearing the front walkway of snow and that he would have been more involved on his day off (Sundays), but I am not persuaded that he suffers a substantial inability to perform housekeeping duties he claims to have performed before the accident. He testified that he preferred to not receive Ontario Works so that his wife could remain home to maintain the household and care for the children. He worked at the car dealership during the day, and, on days he was working at Pizza Pizza, his evening hours would be consumed by that employment. His wife also testified that Mr. Sadat would typically leave for work before the children got home from school and return in the early morning hours. On the evidence, I find that Mr. Sadat was doing more of the household chores after his wife's accident in 2014. Further, because I find that Mr. Sadat's primary and ongoing impairment is his hearing loss, I am not persuaded that it affects the majority of what he can do around the house, save for cooking, which his family testified is a concern in the event that he cannot hear a smoke alarm.

Interest on AssessNet Account

The Schedule requires the insurer to pay interest on overdue benefits. TD submits that the CAT assessment and report cannot be properly characterized as a benefit to the insured, and that any award of interest would accrue to the benefit of AssessNet and not Mr. Sadat.

This issue dates back to October 2, 2015, when Arbitrator Alves issued an order resolving a motion brought by Mr. Sadat for interim expenses, including funding of his CAT assessments. Based on the parties' agreement, she ordered TD to pay $22,500.00 inclusive of HST, toward Mr. Sadat's CAT reports. The order was on consent.

By the time of this hearing, TD had not complied with her order. TD submits that it did not receive the report, and that it did not receive an invoice. I find TD's arguments in this regard hollow. AssessNet records showed that the report was faxed to TD on February 9, 2016. Arbitrator Murray found this to be a fact in a productions order she made dated on August 14, 2017.

I reject TD's submission that it was waiting for an invoice before it could make payment. The parties were operating under an order – a consent order, no less. There is no reason for TD not to have complied with that Order forthwith or within 30 days of Arbitrator Alves' order. At the very least, payment should have been made once the report was completed.

I reject TD's submission that it paid the account promptly upon receipt. The account or invoice was not a condition precedent and Arbitrator Alves' order was clear and unequivocal.

That said, I am not persuaded that funding for catastrophic impairments is a benefit and not an expense. The motion itself was not for interim benefits but for payment of the assessments as an interim expense.

S.46 of the 1996 Schedule states that an insurer shall pay interest in respect of a benefit that is overdue. I find that the assessment is not a benefit. However, I am mindful that TD's failure to comply with Arbitrator Alves' order resulted in time spent on this issue unnecessarily during this arbitration hearing, which I have taken into account in considering expenses, discussed below.

EXPENSES:

In making an award of Section 282(11) of the Insurance Act allows an arbitrator to award all or part of such expenses to the maximum set out in the regulations.¹⁴ An arbitrator shall consider only the criteria set out in the Expense Regulation.¹⁵ Those criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with Rule 76;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary;

(f) whether the insured person refused or failed to submit to an examination as required under section 42 of the Schedule or refused or failed to provide any material required to be provided by subsection 42(10); and,

(g) whether the insured person refused or failed to submit to an examination as required under section 44 of the Schedule, or refused or failed to provide any material required to be provided under subsection 44(9).

The only criteria relevant to this arbitration are Mr. Sadat's degree of success and the insurer's failure to comply with an arbitration order and attempting to litigate an issue that was already the subject of an interim order.

In determining the appropriate quantum of expenses, the objective is to fix an amount that is fair and reasonable given the number of issues, their complexity and the amounts in dispute. In so doing, a pragmatic, broad-stroke approach (rather than a line-by-line assessment) is frequently favoured using a ratio in the range of 1:1 to 4:1 for pre-hearing preparation time to hearing time. I see no reason to depart from that approach in this case.

The hearing itself took place over 11 days. 17 witnesses testified. Mr. Sadat submits that that equates to approximately 66 hours of hearing time; a further 16 hours is claimed for written submissions. He claims a ratio of 4:1 of preparation to hearing time, totalling 410 hours, or $61,500.00 for counsel alone.

Mr. Sadat's bill of costs seeks expenses of $67,497.01, inclusive of HST, plus disbursements totalling $10,624.47.

Rule 78.1 of the Dispute Resolution Practice Code provides that, where an arbitrator is satisfied that a higher amount for legal fees to an insured person is justified, an hourly rate of up to $150.00 may be awarded. I am satisfied that the higher amount for legal fees is appropriate in this case.

Finally, although not a consideration when awarding arbitration expenses, the competence and professionalism of both counsel during this arbitration hearing were exemplary and are worth noting.

Taking into account the length of the proceeding, the complexity and nature of the issues, Mr. Sadat's degree of success and TD's failure to comply with Arbitrator Alves' October 2, 2015 order, I find no reason to reduce the expenses claimed.

January 5, 2018

Jessica Kowalski Date Arbitrator

Financial Services Commission of Ontario