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Neutral Citation: 2020 ONFSCDRS 14 Appeal P18-00037V

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BHUPINDER SINGH GREWAL Appellant and AIG COMMERCIAL INSURANCE COMPANY OF CANADA Respondent

AIG COMMERCIAL INSURANCE COMPANY OF CANADA Respondent and BHUPINDER SINGH GREWAL Appellant

BEFORE: Director’s Delegate Anne Sone

REPRESENTATIVES: Mr. Frank Burns, solicitor for Mr. Grewal Mr. Claude Blouin, solicitor for AIG

HEARING DATES: November 27, 2018, June 12, 2019. Final submissions received on May 4, 2020

VARIATION/REVOCATION ORDER

Under sections 283 and 284 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Mr. Grewal’s Application for Variation is dismissed.
2. AIG Commercial Insurance Company of Canada’s Application for Variation is dismissed.
3. Mr. Grewal pay $1,000 to AIG Commercial Insurance Company of Canada for expenses, inclusive of fees, disbursements and HST.

June 15, 2020

Anne Sone Director’s Delegate Date

REASONS FOR DECISION

I. NATURE OF THE APPLICATIONS

Mr. Grewal applied to vary or revoke Arbitrator Feldman’s decision regarding his entitlement to income replacement benefits (IRBs), attendant care benefits (ACBs) and housekeeping benefits (HK).¹

Mr. Grewal’s Application is based upon evidence that he says was not reasonably available at the arbitration (“new evidence”) which would have had an important influence on the outcome. For the reasons that follow, I am not satisfied that the evidence that Mr. Grewal seeks to rely on is new. I am also not satisfied that the “new evidence” would likely have led to a different outcome. That Application is therefore dismissed.

AIG applies to vary Arbitrator’s Tanaka’s decision relating to the cost of a treatment plan with Sierra Tucson from US $56,000, plus interest, to reflect the discount in its actual cost to US $44,400. I am not satisfied that the evidence that AIG seeks to rely on is “new evidence”. I am also not satisfied that it would likely have led to a different result. I therefore dismiss this Application.

II. BACKGROUND

Mr. Grewal was injured in a motor vehicle accident on January 18, 2009. He applied for and received statutory accident benefits from AIG. Disputes arose regarding his entitlement to various further benefits and, when mediation failed to resolve the disputes, he applied for arbitration.

This case has had a lengthy legal history. In a decision dated August 7, 2014, Arbitrator Feldman dismissed most of Mr. Grewal’s claims, including his claims for further IRBs, ACBs, HK and a special award. Arbitrator Feldman later awarded AIG its expenses of the arbitration, based upon its success.

Mr. Grewal appealed Arbitrator Feldman’s decision. The appeal was limited to Arbitrator Feldman’s denials of further IRBs and payment for proposed treatment in the United States. By order dated November 17, 2015, Director’s Delegate Blackman dismissed the appeal. Director’s Delegate Blackman later awarded AIG its expenses of the appeal, based upon its success.

Mr. Grewal then applied for a Variation of Arbitrator Feldman’s decision regarding his entitlement to income replacement benefits (IRBs), attendant care benefits (ACBs) and housekeeping benefits (HK),² as well Arbitrator Feldman’s expense decision and the expense decision Director’s Delegate Blackman made following dismissal of Mr. Grewal’s appeal of Arbitrator Feldman’s decision. This was before Director’s Delegate Rogers, who was not satisfied that the evidence that Mr. Grewal sought to rely on was new. He was also not satisfied that the proposed “new evidence” would likely have led to a different outcome. He therefore dismissed the Application.

Mr. Grewal brought an Application for Judicial Review of Director’s Delegate Rogers’ dismissal of Mr. Grewal request for a Variation of Arbitrator Feldman’s decision. The Divisional Court confirmed that Director’s Delegate Rogers reasonably concluded that the proposed fresh evidence was obtainable by due diligence, and even if admitted, the new reports do not address the findings of entitlement to benefits made by Arbitrator Feldman. The Divisional Court also stated that “if and when the applicant obtains evidence that is fresh evidence and that does address his entitlement to Statutory Accident Benefits (under the Statutory Accidents Benefits Schedule³), he will be entitled to move under s. 284 (3) at that time.”

Mr. Grewal has brought this latest Application for Variation based on this last statement by the Divisional Court, and what he calls the “new evidence” of Dr. Lawson, Dr. Walsh and Ms. Beverlee Melamed.

AIG applied to vary Arbitrator Tanaka’s order based on the “new evidence” of its adjuster, Ms. Charlene Tuzi.

MR. GREWAL’S APPLICATION FOR A VARIATION OF ARBITRATOR FELDMAN’S ORDER

III. ANALYSIS

This Application for Variation/Revocation is brought under s. 284 of the Insurance Act. As set out in Rule 61 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) (the “Code”), relief is available under this section where it is proven that:

1. There has been a material change in the circumstances of the insured;
2. Evidence not available on the arbitration or appeal has become available; or
3. There is an error in the order.

In his Application for Variation and in his written submissions, Mr. Grewal indicated that he relies on the second element of the Rule, namely: “evidence not available on the arbitration or appeal has become available”.

Director Draper summarized the scope of the “new evidence” ground in Lanctot and Zurich Insurance Company, as follows:

the party seeking variation still has to show that the evidence could not have been obtained for the original hearing by due diligence and that, if it had been available, likely would have had an important influence on the outcome.

The Director endorsed the earlier statement by Director’s Delegate Naylor that:

[t]he legislation places limits on when an order may be reviewed in the interests of ensuring that, in an adversarial process, the parties prepare adequately for the hearing and to secure a finite end to the adjudication process.⁴

Lanctot shows that the “new evidence” criterion does not provide parties with an opportunity to simply remedy the deficiencies that an arbitrator has found in rejecting their positions. The analysis must include the evidence before an arbitrator and the findings that were made. Further, where a party is able to demonstrate that there is evidence that may properly be called new, the evidence must be relevant and it must also be shown that the “new evidence” would have likely led to a different result.

Mr. Grewal argues that the “new evidence” would have led to a different result regarding his entitlement to IRBs, ACBs and HK.

i. Was there “new evidence”?

I am not satisfied that the evidence that Mr. Grewal proposes to rely on is new. As noted above, in order to satisfy the “new evidence” criterion, it must be shown that the evidence that has become available could not have been obtained for the original hearing by due diligence. Mr. Grewal seeks to rely on the following “new evidence”:

• Report by Dr. Kerry Lawson, neuropsychologist, dated March 9, 2015 (commissioned by AIG);
• Report by Dr. Kilian Walsh, psychiatrist, dated March 23, 2015 (commissioned by AIG);
• Report by Ms. Beverlee Melamed, occupational therapist, dated June 6, 2018.

In the Application for Variation before Director’s Delegate Rogers, Mr. Grewal argued that the reports of Dr. Connell, Dr. Lawson and Dr. Walsh proved that he sustained a traumatic brain injury as a result of the accident and identified cognitive deficits arising from his brain injury which show that he is entitled to IRBs, ACBs and HK.

However, Director’s Delegate Rogers found that questions as to the effect of Mr. Grewal’s cognitive impairments on his ability to function were not new. They were central to the arbitration hearing. Mr. Grewal was driving a truck at the time of the accident of January 2009. He struck his head on the driver’s side window and lost consciousness. By May 2009, AIG had conceded that Mr. Grewal sustained a catastrophic impairment as a result of the accident because of a brain impairment resulting in a score of 9 or less on the Glasgow Coma Scale. By the time of the arbitration hearing in 2013, Mr. Grewal’s principal ongoing impairments were not physical, but psychological and cognitive.

Arbitrator Feldman summarized Mr. Grewal’s status as follows:

In general terms, the Applicant recovered reasonably well from his physical injuries, although he continues to complain of some chronic pain (especially headaches) and other symptoms. His more significant ongoing impairments, however, appear to be psychological and cognitive.⁵

In his Reasons for Decision in connection with Mr. Grewal’s first Application for Variation, Director’s Delegate Rogers discussed Mr. Grewal’s submission regarding “new evidence” based on valid psychological testing as follows:

At the arbitration hearing, Mr. Grewal argued that he was entitled to caregiving benefits and IRBs because of his cognitive impairments. He presented expert evidence to support that argument. Arbitrator Feldman concluded otherwise. Mr. Grewal submits that the “new evidence” is based upon valid psychological testing, while the evidence before Arbitrator Feldman showed that he had failed the validity tests. The problem with that position is that there was expert evidence based upon valid psychological testing which Mr. Grewal sought to admit at the hearing. Mr. Grewal sought to introduce the report of neuropsychologist Dr. Gerry Young. Arbitrator Feldman refused to admit it because it was served too late and there were no extraordinary circumstances to explain the late service.⁶

Mr. Grewal appealed Arbitrator Feldman’s refusal to admit Dr. Young’s report at the arbitration hearing.

In dismissing the appeal, Delegate Blackman addressed the question of whether an opinion based upon valid psychological testing could have been procured prior to the arbitration hearing.

Delegate Blackman analysed Mr. Grewal’s submissions and stated:

The Appellant argues that Dr. Young’s report could not have been adduced earlier by due diligence. At paragraph 65 of his April 3, 2015 written submissions, he submits that his counsel had been attempting to obtain a valid neuropsychological assessment for over two years and that Dr. Young’s assessment was the first valid neuropsychological result that could be obtained despite his counsel’s diligence. I inquired where I would find evidence for this submission. The Appellant advised there was none before me.

The Appellant states that the practice effect of earlier neuropsychological testing was the reason for the delay in obtaining Dr. Young’s report. I inquired where I would find the evidence for this submission. The Appellant advised there was none before me. In the absence of evidence, I am not persuaded that Dr. Young’s September 10, 2013 report, with due diligence, could not have been properly served in accordance with Rule 39.1 of the Dispute Resolution Practice Code.

The Appellant had two and a half years from the pre-hearing to prepare for the hearing. The Respondent approved Dr. Young’s new neuropsychological assessment eleven months before the arbitration hearing. There is no evidence of extraordinary circumstances, as required, allowing late service. I am not persuaded Arbitrator Feldman erred in law in exercising his discretion under Rule 39.2 of the Code not to set aside the Rule 39.1 30-day rule regarding Dr. Young’s report⁷.

Director’s Delegate Rogers concurred with Delegate Blackman’s assessment. He was not satisfied that the evidence that Mr. Grewal seeks to rely on in this Application could not have been obtained prior to the arbitration hearing, with due diligence. Upon judicial review, the Divisional Court upheld this ruling.

Mr. Grewal now submits that Ms. Melamed’s report dated June 6, 2018, and her testimony at this Application for Variation is “new evidence” because she could not opine with certainty as to what Mr. Grewal’s functional limitations were without credible diagnoses based on valid neuropsychological test results. I do not agree for two reasons.

Firstly, there is still no persuasive explanation as to why valid neuropsychological testing could not have been obtained prior to the hearing before Arbitrator Feldman.

Secondly, at the time of the hearing before Arbitrator Feldman, Ms. Melamed already knew about Mr. Grewal’s psychological and cognitive impairments as a result of his traumatic brain injury; indeed, she was his case manager at that time.

According to Arbitrator Tanaka’s decision regarding his claim for various treatment plans,⁸ Ms. Melamed was appointed Case Manager for Mr. Grewal in April 2013.

Arbitrator Tanaka wrote as follows about Ms. Melamed:

While she is a qualified occupational therapist, her task here is to co-ordinate services for medical and rehabilitation benefits for the Applicant. [Mr. Grewal]

I am satisfied that Ms. Melamed has extensive background and expertise with respect to successful rehabilitation for persons with traumatic brain injury and needing psychiatric treatment, as well as physical rehabilitation issues. I also give her evidence considerable weight as the professional with the closest involvement in the treatment and challenges facing the Applicant and his family in earning a living and living a normal life.

Ms. Melamed’s CV indicates that she graduated from McGill University with a Bachelor of Science (Occupational Therapy) degree in 1976. Since 1993, she has been in private practice as an occupational therapist, and as owner and director of Beverlee C. Melamed & Associates (BCMA). She mainly provides neuro-rehabilitation services for people with acquired brain injuries.

Starting in at least in June 2012, (more than a year before the start of the hearing before Arbitrator Feldman on September 30, 2013), Ms. Melamed’s firm, BCMA was providing ongoing reports, treatment plans and correspondence to AIG in connection with Mr. Grewal’s condition and function.

Ms. Romy Berger of BCMA, prepared an Assessment of Attendant Care Needs (Form 1) for Mr. Grewal dated June 25, 2012. It included an amount for monitoring medication intake and effect. (This contrasts with Ms. Melamed’s oral evidence at this hearing where Ms. Melamed implied that after reviewing the reports of Dr. Lawson and Dr. Walsh she had then concluded Mr. Grewal needed this sort of AC.)

A Future Care Report dated April 2012 prepared by Ms. Romy Berger and Ms. Melamed included a summary of reports by many medical experts who examined and/or treated Mr. Grewal. These are some of the items highlighted:

• Traumatic brain injury with permanent cognitive and psychological impairments (Medical legal evaluation report by Dr. Rathbone, neurologist, dated August 10, 2010)
• Personality, behaviour and mood changes from Traumatic Brain Injury (Psychiatric Evaluation by Dr. Connell dated August 5, 2011)
• Unable to return to former employment – “Mr. Grewal suffers a substantial inability to perform the essential tasks of his employment as a truck driver” (Preliminary Vocational Evaluation Report by Helen Klein dated July 20, 2011)
• Global Assessment of Functioning (GAF) 45 [out of 100] Psychiatric Evaluation by Dr. Connell dated August 5, 2011 – “Serious symptoms OR any serious impairment in social, occupational, school functioning.”

The report also included a claim for $54 of HK per week.

• In a letter dated April 16, 2013, Ms. Romy Berger of BCMA noted that Mr. Grewal had returned to driving and was beginning to engage in highway driving. She also provided a Summary of Recommendations which included the following: assistance with learning compensatory and memory recall strategies including a one year luminosity membership at a cost of $79.95 plus tax.
• Driving assessment and possible subsequent therapy sessions to help address his feelings of anxiety with respect to driving.
• Referral to the Peel Halton Dufferin Acquired Brain Injury Services (PHDABIS) who offer programs and supports for family members and survivors of acquired brain injury.

In a letter dated July 2, 2013, Ms. Berger repeated some of these recommendations.

In an Expense Hearing before Arbitrator Tanaka,⁹ Mr. Grewal claimed in his Bill of Costs for an invoice from Ms. Melamed for a report dated July 2, 2013. Once again, this was months before the hearing before Arbitrator Feldman.

Accordingly, I am not persuaded that Ms. Melamed required the diagnoses of Dr. Lawson and Dr. Walsh (in reports dealing with Mr. Grewal’s request for the approval of a treatment plan) before making her recommendations regarding Mr. Grewal’s function with respect to IRBs, HK and AC. She was well qualified, informed and capable of doing so at the time of the hearing before Arbitrator Feldman. Indeed, her firm had already done so.

ii. Was a Different Result Likely?

Like Director’s Delegate Rogers, I am not satisfied that the “new evidence” would have likely led to a different result. In this section, I will look at the issue of credibility which had a critical impact on Arbitrator Feldman’s decision regarding these benefits. I will then deal with problems specific to the claimed benefits which the “new evidence” does not remedy.

Here is what Arbitrator Feldman said about the core issue of Mr. Grewal’s testimony and credibility:

While, initially, the Insurer appeared willing to accept the Applicant’s claims at face value, around the summer of 2009 serious questions began to arise concerning the Applicant’s credibility. To many of the Insurer’s assessors, there appeared to be significant discrepancies between the Applicant’s reported and demonstrated level of function during formal testing and his level of functional ability as captured in surveillance videos. The Applicant also failed numerous tests for validity administered by a neuropsychologist (Dr. Trepanier); he failed to such an extent that Dr. Trepanier concluded that the Applicant was likely deliberately trying to make himself appear more impaired than he was. These suspicions were later exacerbated by evidence of inconsistencies in what the Applicant was telling different assessors and by his failure to disclose crucial information to the Insurer.

During this proceeding, the Applicant did not adequately address these concerns about his credibility. His case was significantly weakened by his failure to explain these inconsistencies and his failure to produce important documents (especially those concerning post-accident employment and income). The Applicant’s case was further weakened by his failure to produce witnesses at the hearing such as members of his household who could describe and compare the Applicant’s level of function and usual activities (such as housekeeping and caregiving activities) both before and after the accident and who could provide particulars of any services they (or others) may have provided to the Applicant.¹⁰

Arbitrator Feldman was also aware that the invalid test results and inconsistent reporting could also be “a symptom of the Applicant’s cognitive and psychological impairments.” But Arbitrator Feldman did not find on a balance of probabilities that this was the case.

Director’s Delegate Rogers summarized the credibility problems that Arbitrator Feldman identified as follows:

• Discrepancies between Mr. Grewal’s reported and demonstrated levels of functioning, based on surveillance;
• Failing numerous validity tests;
• Inconsistences in reports to various assessors;
• Failure to produce important documents;
• Failure to produce witnesses who could compare his pre-accident and post-accident function.

Arbitrator Feldman’s finding that Mr. Grewal was not credible is not explained by the “new evidence”.

There is no explanation for failing numerous validity tests, then being successful on the ones administered by Dr. Young and subsequent assessors. There is no explanation for Mr. Grewal’s failure to produce important documents. There is no explanation for Mr. Grewal’s failure to produce witnesses.¹¹

Regarding Arbitrator Tanaka’s comments on Mr. Grewal’s credibility, Director’s Delegate Rogers disagreed and stated as follows:

I give no weight to Arbitrator Tanaka’s ruling regarding Mr. Grewal’s evidence, made in the arbitration between the parties which took place after the appeal before Delegate Blackman. At issue before Arbitrator Tanaka was Mr. Grewal’s entitlement to treatment which Arbitrator Feldman had denied, with the proviso that Mr. Grewal could submit a new treatment plan after obtaining valid neuropsychological test results. Mr. Grewal did not testify before Arbitrator Tanaka, and AIG submitted that an adverse inference should be drawn from his failure to do so. Arbitrator Tanaka refused to draw an adverse inference upon concluding that Mr. Grewal “is limited by his impaired executive function from understanding fully the implications, outcomes and nuances of what he is asked.”

Arbitrator Tanaka was entitled to this conclusion, but she did so in different circumstances from Arbitrator Feldman. Since Mr. Grewal did not testify before Arbitrator Tanaka, the issue of inconsistencies in his evidence did not directly arise. Arbitrator Tanaka did not have the benefit of observing Mr. Grewal’s demeanor, as Arbitrator Feldman did. Arbitrator Tanaka did not review the extensive video surveillance which was presented before Arbitrator Feldman. Further, there was no issue before Arbitrator Tanaka regarding Mr. Grewal’s failure to produce important documents and his failure to call witnesses, as Arbitrator Feldman noted.

Mr. Grewal chose to testify before Arbitrator Feldman. He could have chosen not to do so. Mr. Grewal cannot now undo that decision. I reject Mr. Grewal’s submission that the “new evidence” put him in a better position to make the decision on whether to testify. Questions regarding his credibility were not new. He had ample time to consider the issue and address it. However, as Arbitrator Feldman noted, he “did not adequately address these concerns about his credibility.” With the benefit of Arbitrator Feldman’s analysis, Mr. Grewal appears to have then made a different tactical decision in the arbitration before Arbitrator Tanaka. I am not satisfied that Arbitrator Feldman would have arrived at a different conclusion regarding his credibility, even if the “new evidence” were available to him.¹²

I concur with Director’s Delegate Rogers’ evaluation of Mr. Grewal’s credibility, and give more weight to Arbitrator Feldman’s findings regarding Mr. Grewal’s credibility than to Arbitrator Tanaka’s for the reasons Director’s Delegate Rogers described above, and note that Mr. Grewal actually testified before Arbitrator Feldman. In Groia v. Law Society of Upper Canada,¹³ Moldaver J., writing for the majority in the Supreme Court of Canada, states that “Because the Appeal Panel did not hear Mr. Groia testify it was not in a position to assess his credibility.” In addition, Arbitrator Tanaka did not view the surveillance evidence which showed he had returned to work, and engaged in various caregiving and housekeeping activities that he had testified that he was unable to perform.

Most importantly, as Director’s Delegate Rogers points out, Arbitrator Tanaka was only dealing with medical treatment whereas Arbitrator Feldman was dealing with a broader range of issues, including Mr. Grewal’s claims for IRBs, HK and AC (as is the case with this Application for Variation).

As a result of the foregoing, I find that the “new evidence” of Ms. Melamed, based on various reports, does not address the credibility and other issues relating to Mr. Grewal’s failure to produce important documents and witnesses, and would not have led to a different result.

The reports of Dr. Lawson and Dr. Walsh (that Ms. Melamed is relying on to support Mr. Grewal’s claim that Ms. Melamed’s report dated June 6, 2018 and testimony are “new evidence”) were previously discussed by Director’s Delegate Rogers, and the Divisional Court. F.L. Myers J., in an Endorsement on behalf of the Divisional Court stated that: “The new reports support a diagnosis of injury and proposed treatment but do not address the question of the applicant’s post-accident employability or functionality.”¹⁴ Mr. Grewal proposes that Ms. Melamed’s evidence rectifies this gap.

I agree that Ms. Melamed’s report and testimony does address Mr. Grewal’s post-accident employability and functionality. But it does not do so in any meaningful way that gives additional weight to Ms. Melamed’s previous reports. Nor does her “new evidence” persuasively address Arbitrator Feldman’s concerns, described above. Accordingly, I find that a different result was not likely as a result of the “new evidence” provided at this Application for Variation.

I will now address Arbitrator Feldman’s findings regarding each of the relevant benefits, and how they are impacted by the “new evidence” from Ms. Melamed and the reports from Dr. Lawson, and Dr. Walsh.¹⁵

iv. IRBs

The test for IRBs (for the first 104 weeks after an accident) required Mr. Grewal to prove that his impairments (arising from the accident) caused a substantial inability to engage in the essential tasks of his pre-accident employment as a truck driver.

However, Arbitrator Feldman found it unnecessary to address whether Mr. Grewal met this disability test since he was not persuaded that Mr. Grewal had any loss of income. Proof of loss of income is also required in order to receive IRBs. Arbitrator Feldman based his finding on Mr. Grewal’s testimony, failure to disclose important information, comments to assessors, surveillance and other evidence that Mr. Grewal had worked extensively as a truck driver after his accident. Importantly, Mr. Grewal failed to provide evidence proving that his post-accident income was less than his pre-accident income.

Arbitrator Feldman stated that:

The Applicant has admitted to working extensively after the accident of January 2009 but has provided virtually no documentation to verify the details of his post-accident employment and income.

He admitted that, at some point in 2009 he began to drive his truck again (this time for Pro-X Logistics) and this continued until 2012. He testified that he worked about 8 hours per day, three or four days per week and earned about $2,000 to $2,500 per month.¹⁶

As in the first Application for Variation in this case, there is nothing in the “new evidence” that could lead to a different result regarding Mr. Grewal’s failure to prove a loss of income. Therefore, the “new evidence” cannot lead to a different result regarding IRBs for the first 104 weeks after the accident, regardless of whether Ms. Melamed’s “new evidence” speaks to function this time.

The disability test for IRBs changes at the 104 week mark. To be entitled to an IRB after that, Mr. Grewal had to prove that he was completely unable to engage in any occupation for which he was reasonably suited by education, training or experience. Arbitrator Feldman found that Mr. Grewal did not prove that he sustained a loss of income for this period as well. In addition, Arbitrator Feldman found that Mr. Grewal did not prove that he met the stricter disability test.

Once again, as in the first Application for Variation in this case, and as with the pre-104 week period, nothing in the “new evidence” could lead to a different result regarding Mr. Grewal’s failure to prove a loss of income. Therefore, Arbitrator Feldman would have likely dismissed Mr. Grewal’s IRB claim, regardless of the impact of the “new evidence” regarding his impairments and function.

I agree with Director’s Delegate Rogers dismissing Mr. Grewal’s submission that his cognitive impairments prevented him from obtaining evidence to prove his loss of income. Director’s Delegate Rogers stated as follows regarding this issue:

Mr. Grewal submits that his cognitive impairments prevented him from gathering the evidence to prove a loss of income. There is no evidence supporting that submission. Further, Delegate Blackman rejected the same submission at the appeal, ruling that Mr. Grewal had ample opportunity to prove a loss of income and that Arbitrator Feldman did not err in concluding that he did not. Mr. Grewal cannot attack that ruling in this application.¹⁷

Regarding Arbitrator Feldman’s findings on the post-104 week disability test, Arbitrator Feldman did take into account Mr. Grewal’s position that his cognitive and emotional impairments prevented him from engaging in employment. There was evidence to that effect before Arbitrator Feldman who nevertheless found that Mr. Grewal did not meet the test. Arbitrator Feldman stated:

The Applicant’s position is that he is still nervous when driving, especially on the highway, and that his cognitive and emotional impairments make it difficult for him to drive a truck for extended periods and long distances as he did prior to the accident of January 18, 2009. Nevertheless, the test for income replacement benefits after 104 weeks of disability is more stringent and is not necessarily tied to the work the Applicant was doing at the time of the accident.

The Applicant possesses education, training and experience in: agriculture; working with machinery; driving smaller as well as larger vehicles and making deliveries within the Greater Toronto Area; and factory work (including supervising others and doing quality control). Despite some lingering impairments, I find that the Applicant has demonstrated sufficient functional ability, motivation and endurance to work at a job that would pay at least as much as his reported pre-accident income. The Applicant has failed to prove that he has suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.¹⁸

There was ample evidence before Arbitrator Feldman supporting this disability ruling, including the opinion of Mr. Grewal’s own assessors, extensive surveillance, and evidence that Mr. Grewal had in fact worked extensively as a truck driver after the accident. There was no evidence that he had in fact encountered significant difficulty in engaging in that activity. On appeal, Delegate Blackman rejected Mr. Grewal’s challenge of Arbitrator Feldman’s findings in this regard.

Except for the evidence of Ms. Melamed, none of the reports tendered as “new evidence” directly addresses the question of entitlement to IRBs.

I agree with and adopt Director’s Delegate Rogers’ comments regarding these other reports, as follows:

They focus on diagnosis and the question of whether Mr. Grewal is entitled to payment for multidisciplinary treatment in Tucson, Arizona. None of the reports assesses Mr. Grewal’s vocational aptitude. None of the reports address the question of whether Mr. Grewal can engage in any employment for which he is reasonably suited by education, training or experience.

Entitlement to IRBs is a question of function, not diagnosis. A person diagnosed with psychological disorders and cognitive impairments could nevertheless be functionally employable. Arbitrator Feldman focused on Mr. Grewal’s proven functional abilities in determining that he did not meet the disability test. Arbitrator Feldman’s decision shows that he was aware that the issue was one of function. Although Arbitrator Feldman reserved the decision on whether Mr. Grewal was entitled to treatment in Arizona, pending valid neuropsychological test results, there was no similar reservation with regard to entitlement to IRBs, ACBs or HK. I am not satisfied that the “new evidence” likely would have led to a different conclusion.¹⁹

If I have erred in my previous analysis regarding Mr. Grewal’s entitlement to IRBs, I will now look at whether Ms. Melamed’s evidence provided at this Application for Variation is new and would have likely led to a different result before Arbitrator Feldman.

Mr. Grewal relies on Ms. Melamed’s report dated June 6, 2018, her oral testimony at the hearing, and the medical reports.

Ms. Melamed submits that without valid neuro-psychological evidence she could not opine regarding his employment as a truck driver. I do not find this submission persuasive. As indicated above, prior to the arbitration hearing, Ms. Melamed had access to a number of medical reports describing his cognitive deficits. As an occupational therapist who was highly experienced in traumatic brain injuries, I am confident that she did not require the additional medical reports of Dr. Walsh and Dr. Lawson²⁰ to render an opinion regarding Mr. Grewal’s functional abilities. Especially since those reports pertained to a treatment plan, not to the tests regarding IRBs.

In her June 6, 2018 report regarding Mr. Grewal’s claim for IRBs, Ms. Melamed states as follows:

Mr. Grewal was not safely able to return to driving his truck (18 wheeler transport) as the demands of this job were beyond his capacities given the seriousness of his brain injury, the physical and emotional issues that he experienced as a result of the accident.

However, Ms. Melamed’s company, BCMA, was working with Mr. Grewal in 2012, more than a year before the arbitration hearing before Arbitrator Feldman. So I fail to see how this evidence could not have been obtained by due diligence before the original hearing.

She discounts the fact that he was cleared to drive by his family doctor, neurologists, psychiatrists and rehabilitative driving assessors. Mr. Grewal’s driving licence was suspended for a brief period of time. It is not credible to me that Dr. Dhaliwal, a psychiatrist,²¹ would reinstate Mr. Grewal’s licence on November 16, 2011, if it were unsafe to do so.

In her report, Ms. Melamed notes that Mr. Grewal is driving with many restrictions.

During her cross-examination, Ms. Melamed admitted that Mr. Grewal is continuing to consistently drive a transport truck between Brampton and Milton on a regular basis. He makes three back and forth trips per night, approximately between 6:00 p.m. and 6:00 a.m.

She states as follows at page 2 of her report:

He restricts his trips to nighttime hours where there is minimal traffic. He avoids highway driving. He drives in tandem fashion with other workers as he is insecure in his transport duties. He is not able to take the necessary breaks, as he states that he is not paid if he takes a break if driving under one hour and twenty minutes of his trips, He only does a few trips each week (to meet financial pressures) as he knows he cannot cope with any more than this. His tolerance, fatigue and pain levels, are heightened after thirty minutes of driving. His cognitive skills, as a result of his brain injury, affect his problem-solving abilities, putting him at risk for safety.

Ms. Melamed admitted during her testimony that Mr. Grewal is continuing to see his treating psychologist regarding any driving phobias, and that he has improved.

Surveillance shows that Mr. Grewal has driven a commercial truck safely for at least five years since the accident, up to and including the time of this hearing. I find that this is cogent proof that not only does Mr. Grewal have the ability to engage in the essential tasks of his pre-accident employment as a truck driver, but also that Mr. Grewal is aware of his limitations, and, as indicated above by Ms. Melamed, takes prudent precautions to ensure the safety of himself and others while he is driving.

Accordingly, I find that Ms. Melamed provided no persuasive evidence regarding Mr. Grewal’s claim for IRBs which would likely lead to a different result for those benefits. She admits that Mr. Grewal is continuing to regularly drive a transport truck, albeit with some restrictions. She does not refer to any aspect of the post-104 week test. She does not address Arbitrator Feldman’s finding that “the Applicant demonstrated sufficient functional ability, motivation and endurance to work at a job that would pay at least as much as his reported pre-accident income.”²²

As Myers J. stated in the Divisional Court Endorsement (pertaining to Mr. Grewal’s previous Application for Variation): “It is not sufficient for insureds to simply show a diagnosis, they must prove on a balance of probabilities that they meet the test for the particular benefit.”

For the foregoing reasons, I am not persuaded that the “new evidence” submitted by Mr. Grewal regarding IRBs could not have been obtained before the original hearing by due diligence. I am also not satisfied that the “new evidence” would likely have led to a different result.

v. Housekeeping

Arbitrator Feldman found that Mr. Grewal’s pre-accident housekeeping responsibilities were very limited and dismissed the claim because he was not satisfied that Mr. Grewal’s impairments prevented him from engaging in them. Arbitrator Feldman stated:

The preponderance of the evidence suggests that the housekeeping and home maintenance services that the Applicant normally performed before the accident were extremely limited. His wife and mother-in-law were the household members who were primarily responsible for housekeeping prior to the accident. The Applicant’s usual responsibilities involved such things as cutting the grass, shovelling the snow and occasionally vacuuming, doing occasional repairs or otherwise helping his wife or mother-in-law if and when he was home and able.

Surveillance evidence (including video recordings from May 2009, August 2010 and January 2011), however, clearly show the Applicant engaged in numerous, demanding physical activities, without any apparent difficulties or limitations. These activities include shoveling snow, attaching a tractor trailer to a cab, lifting his child with both arms and carrying him for a prolonged period in one arm and running after a runaway shopping cart. Having watched all of the surveillance evidence, I have no difficulty in concluding that, at all relevant times, the Applicant was capable of vacuuming, cutting the grass, taking out the trash or shoveling snow.²³

As discussed in detail above, I am not satisfied that the medical reports and the evidence of Ms. Melamed that Mr. Grewal seeks to rely on in this Application could not have been obtained prior to the arbitration, with due diligence.

Regarding the medical reports, Director’s Delegate Rogers (whose decision was affirmed on appeal to Divisional Court) stated as follows:

There is nothing in the “new evidence” to suggest that Mr. Grewal’s cognitive impairments prevent him from engaging in the “extremely limited” housekeeping and home maintenance activities that he performed before the accident. I am not satisfied that this evidence would have led to a different result.²⁴

I agree with Director Delegate Rogers’ assessment of the medical reports provided to me.

Ms. Melamed testified that she acted as Mr. Grewal’s case manager “early on”. Her report dated June 6, 2018, and testimony at this hearing suggested that based on these medical reports, she could only now opine regarding Mr. Grewal’s housekeeping needs. However, the medical reports she refers to were made in connection with a treatment plan, not a claim for housekeeping and home maintenance. In addition, as a highly qualified and experienced occupational therapist with a special expertise in the area of traumatic brain injury, I do not accept that she was unable to opine about Mr. Grewal’s housekeeping and attendant care needs before receiving medical reports relating to a treatment plan. As a result, I find that, Ms. Melamed’s report dated June 6, 2018 and her testimony at this hearing does not meet the test for “new evidence”. In other words, Mr. Grewal has not proven that Ms. Melamed’s evidence could not have been obtained prior to the arbitration hearing with due diligence.

At page 3 of her report dated June 6, 2018, Ms. Melamed states that Mr. Grewal “cannot assist with home chores”. She also states that “Emotional and psychological symptoms affect his ability to be relied upon for any routine and regular tasks, as are dependent on his moods.” The only example that she gave was that he could no longer sweep or vacuum.

However, none of Ms. Melamed’s evidence addresses Arbitrator Feldman’s serious concerns regarding the limited amount of housekeeping that Mr. Grewal performed before the accident and the surveillance that showed Mr. Grewal doing housekeeping and maintenance activities that he claimed that he was unable to perform. There was no explanation as to why Mr. Grewal could perform heavy outdoor activities, but not sweeping or vacuuming.

I am not persuaded that the “new evidence” from Ms. Melamed proves that Mr. Grewal’s impairments prevent him from engaging in the “extremely limited” housekeeping and home maintenance activities that he performed before the accident. I am not satisfied that this evidence would have led to a different result.

vi. Attendant Care

Director’s Delegate Rogers summarized Mr. Grewal’s claim for an attendant care benefit up to that proceeding as follows:

After the accident, AIG paid Mr. Grewal attendant care benefits until June 2009. Payment was terminated, based upon medical evidence and surveillance indicating that Mr. Grewal did not require the level of assistance that he claimed. AIG asked him to submit details of any services he continued to receive. Arbitrator Feldman found that those details were never provided. Arbitrator Feldman dismissed Mr. Grewal’s claim for further payment upon ruling that he “simply failed to prove, on a balance of probabilities, the exact nature and extent of any attendant care services he reasonably required beyond what has already been provided for by the Insurer.”

The evidence before Arbitrator Feldman included the opinion of Dr. Connell, one of the experts whose opinion Mr. Grewal tenders as “new evidence”. Arbitrator Feldman stated: “In August 2011, one of the Applicant’s staunchest supporters, Dr. Connell, concluded that “there is no immediate need to provide attendant care...” Although Dr. Connell now states that “Mr. Grewal’s major neurocognitive disorder results in difficulty in independent living and self-care”, there is nothing in the opinion to show that Mr. Grewal actually requires assistance with self-care.²⁵

In Dr. Lawson’s report of March 9, 2015, also tendered as “new evidence”, before Director’s Delegate Rogers, Dr. Lawson indicates that Mr. Grewal “said that he is able to plan and organize his life activities independently.”²⁶ Mr. Grewal also told Dr. Lawson that he is able to perform activities of daily living such as dressing and washing in an independent manner.²⁷ In Dr. Walsh’s report of March 23, 2015, also tendered as “new evidence”, Dr. Walsh indicates that Mr. Grewal “said that he continued to handle his own personal care.”²⁸

Director’s Delegate Rogers found nothing in this “new evidence” that would have led Arbitrator Feldman to a different conclusion regarding Mr. Grewal’s need for attendant care.

In the proceeding before me, Mr. Grewal also tendered Ms. Melamed’s report dated June 6, 2018, and her testimony, as “new evidence,” regarding attendant care. As indicated previously, she was his case manager from “early on”. In her report, Ms. Melamed states that Mr. Grewal’s level of attendant care remains unchanged. In particular, with respect to support for attendant care, she opines the following:

Mr. Grewal’s injury further affects functionality as well. His poor memory, needs the [sic] frequent reminders and cueing, lack of initiation and motivation are all consequences of a traumatic brain injury affecting daily function. His wife reports instances in which he needs to be reminded for self-care, hygiene tasks, follow through with prescribed programs, medication management and effects.

I see no reason why this evidence could not have been before Arbitrator Feldman’s arbitration hearing. In fact, in an Assessment of Attendant Care Needs (Form 1) dated June 25, 2012, Ms. Melamed’s associate, Ms. Romy Berger had recommended 35 minutes per week to monitor medication intake and effect. So, obviously, Ms. Berger had not required additional medical reports and diagnoses.

I find that Ms. Melamed’s report and testimony also would not have led to a different result regarding attendant care because I find it vague and that it does not address significant concerns raised by Arbitrator Feldman.

In his decision, he states:

… it would have been critical for me to hear cogent and credible testimony from the Applicant and members of his household as to the Applicant’s attendant care needs since the accident. In fact, there was no testimony during this hearing from the Applicant that suggested the Applicant required any attendant care during the period in question. No one else from the Applicant’s household testified. [My emphasis. Arbitrator Feldman’s underlining.]²⁹

Mr. Grewal did not testify before me to rectify this critical lack of evidence regarding his claim for attendant care. Nor did any members of his household.

In addition, during her cross-examination, Ms. Melamed could not satisfactorily explain the comments regarding Mr. Grewal’s self-sufficiency for his attendant care made to Dr. Lawson and Dr. Walsh, as noted above.

Like Director’s Delegate Rogers in Mr. Grewal’s previous Application for Variation, I find nothing in the “new evidence” that would have likely led Arbitrator Feldman to a different result.

Conclusion:

Just as diagnoses by themselves do not meet the tests for an Application for Variation, Ms. Melamed’s purported reliance on these diagnoses also do not meet these tests. The bottom line is that the onus is still on Mr. Grewal to prove that he is entitled to the benefits he is claiming.

Mr. Grewal has failed to prove on a balance of probabilities that the “new evidence” was not available at the time of the hearing before Arbitrator Feldman, and has failed to prove it would have led to a different result regarding his entitlement to IRBs, ACBs, and HK. Therefore, he cannot succeed in varying the dismissal of these claims, and his Application is dismissed.

AIG’S APPLICATION FOR A VARIATION OF ARBITRATOR TANAKA’S ORDER

I. BACKGROUND

In her decision dated January 11, 2015, Arbitrator Tanaka found that a treatment plan dated January 11, 2015, prepared by Dr. Connell for treatment at Sierra Tucson in the amount of US $56,000, plus interest, was reasonable and necessary. This amount was upheld on appeal before Director’s Delegate Evans.

Due to a courtesy discount, the treatment plan only cost US $44,400. AIG now seeks to vary the order of Arbitrator Tanaka to reflect the actual cost of the treatment plan. This would have implications upon the amount of interest owed to Mr. Grewal.

II. ANALYSIS

The same general legal analysis regarding applications for variation set out above applies here. In other words, AIG has to prove that the “new evidence” was not available with due diligence at the time of the hearing. It must also show that it likely would have led to a different result.

i. Was there “new evidence”?

Ms. Charlene Tuzi testified on behalf of AIG. AIG also provided documentary evidence regarding how the actual amount paid was reduced due to a discount.

Ms Tuzi admitted that she looked for cheaper alternatives to this treatment in Canada. US $56,000 was a substantial amount for a treatment plan. I find that Ms. Tuzi could have checked whether there could be a courtesy or any other sort of discount at the Sierra Tucson facility in Arizona prior to the hearing.

Therefore, I find that AIG has not proven that this “new evidence” was not available at the hearing with due diligence.

ii. Was a different result likely?

Arbitrator Tanaka was very concerned about the delay in Mr. Grewal’s treatment. Changing the amount of the treatment plan would impact the amount of interest Mr. Grewal was entitled to receive due to AIG’s delay. Arbitrator Tanaka might have revised the amount of the original treatment plan, had she received evidence regarding the discount; however, I do not find that this outcome was likely, given the tone of her decision regarding an attempt by an AIG adjuster to defeat Mr. Grewal’s claim for interest, by requiring Mr. Grewal to submit new treatment plans.

Conclusion:

AIG has failed to prove on a balance of probabilities that the “new evidence” was not available with due diligence at the time of the hearing before Arbitrator Tanaka, and has failed to prove it would have likely led to a different result regarding the amount of the treatment plan. Therefore, AIG cannot succeed in varying the amount of Arbitrator Tanaka’s order, and its Application is dismissed.

EXPENSES

Pursuant to Rule. 77 of the Code, an adjudicator is to make an award of expenses as part of the order on the substantive issues, unless informed by the parties that an offer to settle should be considered. The parties neither informed me of any offers to settle, nor provided any submissions on expenses. Accordingly, I make the following determinations.

I find that AIG was successful with regard to Mr. Grewal’s for Application for Variation. Althernatively, I find that Mr. Grewal was successful with regard to AIG’s Application for Variation. However, Mr. Grewal’s Application for Variation was much more complex, and took up almost all of the hearing and submission time. On the other hand, much of material relating to Mr. Grewal’s Application for Variation was similar to the Application for Variation before Director’s Delegate Rogers. I find that none of the other considerations under the Expense Regulation apply. As a result, I find that Mr. Grewal is liable to pay AIG its expenses in the amount of $1,000, inclusive of fees, disbursements and HST.

June 15, 2020

Anne Sone Director’s Delegate Date

Footnotes

1. 1The Application for Variation/Revocation also claimed variation of the Arbitrator’s dismissal of Mr. Grewal’s claims for medical benefits, but he did not pursue that claim at the hearing.
2. 2That Application for Variation/Revocation also claimed variation of Arbitrator Feldman’s dismissal of Mr. Grewal’s claims for medical benefits, but he did not pursue that claim at that hearing.
3. 3The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
4. 4(FSCO P02-00033, October 30, 2003), at page 7.
5. 5(FSCO A09-002980, August 7, 2014), at page 6.
6. 6(FSCO P16-00030V, November 29, 2016), at page 5.
7. 7(FSCO P14-00032A, August 13, 2015), at pages 4, 5 and 6.
8. 8(FSCO A14-003045, February 16, 2016), at page 4.
9. 9Grewal and AIG Commercial Insurance Company of Canada (FSCO A14-003045, January 3, 2017), at page 8.
10. 10See footnote 5, supra, at page 6.
11. 11See footnote 6, supra, at pages 6 and 7.
12. 12See footnote 6, supra, at page 7.
13. 13[2018] 1 SCR 772, 2018 SCC 27 para 37.
14. 14Grewal v. AIG Insurance Company of Canada, 2018 ONSC 1202, at para. 6.
15. 15In her report dated June 6, 2018, Ms. Melamed does not refer to the report of Dr. Connell.
16. 16At page 13.
17. 17See footnote 6, supra, at page 10.
18. 18See footnote 5, supra, at pages 16 and 17.
19. 19See footnote 6, supra, at page 10 and 11.
20. 20Dr. Lawson, neuro-psychologist, provided a DSM-5 diagnosis of Major Cognitive disorder (associated with a traumatic brain injury) with a differential diagnosis of Mild Cognitive Disorder.
21. 21Mr. Grewal was referred to Dr. Dhaliwal by his family physician.
22. 22At this hearing, Mr. Grewal provided no additional evidence that verified his post-accident income.
23. 23See footnote 5, supra, at pages 18 and 19.
24. 24See footnote 6, supra, at page 11.
25. 25Ibid., at page 12.
26. 26At page 8.
27. 27At page 9.
28. 28At page 6.
29. 29See footnote 5, supra, at page 24.