[The Applicant] v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649

Citation: [The Applicant] vs. Portage La Prairie Mutual Insurance Company2019 ONLAT 18-001837/AABS

Date: October 11, 2019

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

[The Applicant]

Applicant

and

Portage La Prairie Mutual Insurance Company

Respondent

DECISION

PANEL:

Kate Grieves, Adjudicator

APPEARANCES:

For the Applicant:

David Hollingsworth, Counsel

For the Respondent:

Nestor E. Kostyniuk, Counsel

HEARD IN PERSON:

January 8, 9, 10, and 11, 2019 in Ottawa

OVERVIEW

1The applicant was involved in an accident on July 31, 2016. He claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”). The respondent denied the applicant’s claim for non-earner benefits. On March 6, 2018, the applicant commenced an application with the Licence Appeal Tribunal (“Tribunal”) to dispute the denial.

ISSUES

2The parties agreed that the issues to be determined by the Tribunal are:

i. Is the applicant entitled to receive a weekly non-earner benefit from February 1, 2017 to date and ongoing?

ii. Is the applicant entitled to an award under Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

3The parties agreed that the quantum of benefits should not be determined by the Tribunal at this hearing, and the Tribunal would not make findings regarding whether the applicant was enrolled in school at the time of the accident.

RESULT

4The applicant is entitled to weekly non-earner benefits from February 1, 2017 to date and ongoing. The benefits shall be paid forthwith, with interest in accordance with the Schedule.

5The applicant is entitled to an award corresponding to 40% of the amount to which he is entitled to on the date of this decision, with interest in accordance with the Schedule.

THE LAW

6Section 12(1)(1) of the Schedule sets out the test for non-earner benefits. The applicant must establish that he suffered a complete inability to carry on a normal life as a result of the accident.

7Section 3(7)(a) defines a “complete inability to carry on a normal life” as follows:

a person suffers a complete inability to carry on a normal life as a result of an accident 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.

8The parties both submit the principles set out in the Court of Appeal decision in Heath v Economical Mutual Insurance Company¹ apply in assessing the applicant’s entitlement. According to the court:

i. The analysis requires a comparison of the claimant’s activities and life circumstances before the accident to his activities and life circumstances after the accident. This requires more than taking a “snapshot” of the claimant’s life immediately preceding the accident. Assessing the claimant’s activities and circumstances prior to the accident should be assessed over a reasonable period prior to the accident, the duration of which depends on the facts of the case.

ii. In order to determine whether the claimant’s ability to engage in “substantially all” of his or her activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life.

iii. The phrase “continuously prevents” means that the applicant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”.

iv. The phrase “engaging in” requires more than “isolated attempts”, and more than “merely going through the motions”. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that they are truly “engaging in” the activity.

v. In cases where pain is a primary factor that prevents the claimant from engaging in their activities, the question is not whether the claimant can physically do the activities, but whether the degree of pain experienced (either at the time or subsequent to the activity) is such that the individual is practically prevented from engaging in those activities.

BACKGROUND

9On the date of the accident, July 31, 2016, the applicant was 18 years old. He had just graduated high school and was intending to start college in September. The applicant was struck by a car while standing on a sidewalk near a bus stop. He suffered a severe traumatic brain injury, facial and skull fractures, scapular fracture, and lung contusion. The applicant was conscious initially, but deteriorated rapidly with his Glasgow Coma Scale dropping as low as 3. He remained in hospital until August 16, 2016 when he was discharged home under 24-hour care while waiting for a place at the rehabilitation facility.

10On September 1, 2016, the applicant was admitted to the Ottawa Hospital Rehabilitation Centre, which specializes in caring for patients with brain injuries, under the care of the clinic director, Dr. Shawn Marshall. The rehabilitation team included a speech therapist, social worker, occupational therapist, and physiotherapist.

11Dr. Marshall completed an OCF-3 Disability Certificate dated October 1, 2016 on behalf of the applicant at the request of the respondent’s adjuster. Dr. Marshall indicated that the applicant suffered a complete inability to carry on a normal life, and the expected duration of disability was more than 12 weeks as a result of his severe traumatic brain injury. In a report appended to the OCF 3, Dr. Marshall noted that the applicant had a Montreal Cognitive Assessment Score (“MoCA”) of 15/30.² He had loss of smell and taste sensations, as well as significant cognitive impairment in multiple domains, including visuospatial, executive function, attention, memory and language. He was independent with mobility and his activities of daily living, but required 24-hour supervision due to his cognitive impairment.

12The applicant was discharged from the Ottawa Hospital Rehabilitation Centre on October 12, 2016, although he was still experiencing significant cognitive deficits.³ It was suggested by the rehabilitation team that following his discharge, the applicant attend the Robin Easey Centre -- a residential facility that works on skill development for brain injured patients -- however the applicant declined.

13The applicant received occupational therapy with Mr. Cameron St. Germain and speech language therapy with Ms. Angela Baird regularly since his discharge from hospital. The applicant continued to see Dr. Marshall every three months or so since the accident. All three of those treatment providers testified at the hearing on behalf of the applicant. The respondent did not call any witnesses to testify.

ANALYSIS

Insurer’s Examinations

14The respondent arranged a series of insurer examinations (“IEs”) to assess the applicant’s entitlement to the disputed benefits. Dr. T. Mendis and Dr. David Simon concluded that from a neurological and orthopedic perspective, the applicant did not suffer a complete inability to carry on a normal life.⁴

15Multiple neuropsychological assessments were performed by Dr. Schmidt. I do not find the reports of Dr. Schmidt to be compelling and grant them little weight. They are inconsistent with the medical records documenting the applicant’s injuries and impairments. Dr. Schmidt concluded that the applicant’s test scores were invalid, however the neuropsychologist who performed the catastrophic assessment on behalf of the respondent -- Dr. Wiseman -- reviewed Dr. Schmidt’s test data and determined that the scores were within valid ranges.

16Dr. Schmidt initially saw the applicant in March 2017 for a neuropsychological assessment.⁵ In his report dated April 13, 2017, Dr. Schmidt noted “there is a discussion of a sustained traumatic brain injury within his medical record, but this seemed to absolve shortly after his accident… He was also able to complete his education post-MVA”. These findings are contrary to the hundreds of pages of medical records, including many items listed in the “Documents Reviewed” section of his report, which establish that the applicant did sustain a severe traumatic brain injury and continued to suffer from ongoing cognitive impairments as a result. Even the neurologist, Dr. Mendis, noted in his report “from a neurological perspective, he sustained a traumatic brain injury, which is well-documented in his medical record” [emphasis added.] Dr. Mendis also administered the MoCA, and the applicant scored 23/30. Further, Dr. Schmidt’s indication that the applicant was able to complete his education post-accident is incorrect -- the applicant made multiple attempts to return to school post-accident but was unsuccessful.

17Dr. Schmidt noted in his report that the applicant was having difficulty following instructions during his assessment, including going into a different testing room than the one he was being led to. He did not follow all the instructions during testing and was unable to complete one of the tests. Dr. Schmidt also noted that there were some auditory processing concerns given the applicant’s slow responses. He also demonstrated awkward pen grip and fatigue during testing. However, according to Dr. Schmidt, the validity testing was indicative of symptom exaggeration. Despite the observations noted above, based on the medical records, background history, behavioural observations and testing data, Dr. Schmidt concluded “I am more inclined to side on performance and symptom exaggeration which have affected the interpretation and quality of his testing, and thus complicating diagnostics and treatment recommendation which at this point are nil”. However, Dr. Schmidt requested to review the Ministry of Transportation records, indicating that his opinion may change.

18An addendum report was completed by Dr. Schmidt, dated January 11, 2018.⁶ Upon reviewing the additional documentation including the driving assessment and a progress report from the occupational therapist, Dr. Schmidt concluded that he was unable to gather valid and reliable information, and therefore recommended a further evaluation to properly formulate his opinion regarding a “complete inability to carry on a normal life”.

19Accordingly, a new neuropsychological assessment took place in June 2018.⁷ Dr. Schmidt again concluded in his June 26, 2018 report that he had “no objective data to support that [the applicant] currently suffers a complete inability to carry on a normal life as a result of the accident from a neuropsychological perspective”. Dr. Schmidt again found that the quality of the testing was impacted by the applicant’s “performance and symptom exaggeration”. Given the lack of reliable and valid testing data, Dr. Schmidt determined that he could not make any recommendations.

20In the fall of 2018, the applicant underwent assessments on behalf of the respondent to determine if he had sustained a catastrophic impairment as a result of the accident.⁸ Assessments were performed by an occupational therapist, Ms. Nicholson, and a neuropsychologist, Dr. Wiseman. The respondent’s assessors determined that the applicant was catastrophically impaired per criteria 4 – brain impairment. Dr. Wiseman concluded that the applicant’s level of brain-related cognitive impairment was compatible with Lower Moderate Disability (5) per the Extended Glasgow Outcome Scale (“GOS-E”) at one year or more post-accident.⁹

21As part of her assessment, Dr. Wiseman reviewed the April 2017 report prepared by Dr. Schmidt as well as his testing data. She noted that Dr. Schmidt had included a symptom validity test although it would only be relevant to psychological data, because symptom validity and cognitive performance validity are independent constructs.¹⁰ Further she disagreed that the validity testing revealed evidence of malingering or symptom exaggeration. Upon her review of Dr. Schmidt’s data, she found that the applicant’s scores were acceptable.

22Dr. Wiseman also reviewed Dr. Schmidt’s June 2018 report and data. She disagreed with his opinion regarding symptom validity indicator and noted that the applicant’s scores were within the cut-off range. Dr. Wiseman noted that Dr. Schmidt misinterpreted the validity measures as indicative of symptom exaggeration. Dr. Wiseman noted that on both occasions that Dr. Schmidt assessed the applicant, he “administered only one performance validity test and cognitive screening measures that are an inadequate basis on which to make any meaningful conclusion about cognition or cognition related disability”.

23I accept the conclusions and recommendations of Dr. Wiseman and Ms. Nicholson. I find Dr. Wiseman’s assessment much more comprehensive than Dr. Schmidt’s. Dr. Wiseman and Ms. Nicholson’s conclusions are also consistent with the findings and recommendations of the applicant’s rehabilitation team.

24In contrast to Dr. Schmidt, Dr. Wiseman found that the applicant actually tended to under-report difficulties, not maximize them.¹¹ Dr. Wiseman diagnosed a Major Neurocognitive Impairment due to traumatic brain injury with behaviour change (disinhibition and impulsivity). She also found evidence of anosognosia – a neurological diagnosis which means that the applicant has poor awareness of his deficits. He lacks insight into his injuries and the need for intervention, or “buying into” treatments that that would improve his prognosis and community reintegration. Based on her findings and the occupational therapy assessment, Dr. Wiseman concluded:

It is unlikely that [the applicant] is capable of work at this time. His social activities have been disrupted and there is evidence of relationship strain due to his irritability and brain injury related behaviour changes. In addition, it is not clear that [he] is able to stay at home and be safe for up to eight hours at a time, due to his impulsivity, distractibility and poor judgement. Using the GOS-E metric, this is in keeping with at least lower moderate disability, and perhaps an even greater level of disability at more than two years post-accident. His GOS-E score is therefore 5 or less.

25Ms. Nicholson’s occupational therapy in-home assessment took place on September 4, 2018. She noted that no one answered the door on her arrival. Ms. Nicholson noted that the applicant slurred his words slightly throughout the assessment.¹² He demonstrated difficulty in remaining focused on the assessment and was either distracted or tangential. He was a poor and unclear historian, with significant difficulty in recalling details.

26Ms. Nicholson reviewed the applicant’s pre-accident and post-accident social situation and functional status. Ms. Nicholson determined that the applicant was limited in the activities in which he can engage.

Pre-accident	Post-Accident
Saw friends everyday (basketball, restaurants, movies)	Sees his friends sporadically, now they just play videogames. Does not go to restaurants or movies very often.
Played basketball everyday (in a league on weekends, at school during lunch, at the YMCA 5 days per week).	Not allowed to play basketball. Goes to the gym, but is accompanied and relies on others to take him there.
Mother responsible for most housekeeping and meal prep. Applicant used oven and stove to make snacks and small meals. Tidied his own room, put away clothes. Helped with grocery shopping, dishes, and snow removal.	Brother and mother tidy his room and make his bed. Does not help with snow removal or groceries. Not allowed to use the stove because he is easily distracted, will forget it is on and walk away.
Had his own money saved, used a bank card	No savings anymore. Does not do any banking. Money allocated to him by mother on daily basis due to inappropriate spending.
Provided transportation to siblings 3-4 times per week	Has been assessed as not capable of driving. Takes the bus, but only to […] College. Family either walks him or drives him to the bus stop. May take Uber but his family will arrange the service and they pick him up to come home.
	Family takes away his phone at night so he will go to sleep.
	Family has to remind him about all appointments. Has a calendar, but forgets to check it.

27The applicant reported independence with his self-care, but noted that his family waits outside the bathroom door while he takes a shower. Ms. Nicholson indicated that while he is physically able to perform his own care, the applicant is likely not acknowledging the assistance that he requires to cue him for his self-care based on his demonstrated limitations during the assessment. He did not have insight into the degree of cueing that he receives. For example, the applicant was not able to wake in time for the assessment, despite three calls each from his parents. He did eventually wake with prompting from the doorbell, but answered the door after a significant delay. Ms. Nicholson concluded that although the applicant can be left alone in the home, he requires cueing and prompting for all activity. When he is alone, he spends his time watching YouTube and does nothing else.

28His verbal reasoning was good; but when his answers were not reasonable, they were grandiose (saying that he was superman, or that he would walk around like a spy). The applicant’s behaviour during the assessment was inappropriate at times, such as when he began spontaneously signing, and naming random objects. Ms. Nicholson concluded that there had been a significant alteration in his interaction with friends and family, most notably with his grandmother who he used to see every day. His mood has had a significant impact on his interactions with family.

29Ms. Nicholson completed a collateral interview with the applicant’s mother as part of her assessment.¹³ She confirmed that prior to the accident, the applicant was very happy and respectful. He went to school and saw his friends, would visit his grandmother and call her frequently. Now he is mad all the time and is argumentative. He refuses to visit or call his grandmother. She reported that the applicant does not like his friends anymore and sees them less often. He is always asking for money, but he is irresponsible with spending.

30Ms. Nicholson concluded that the applicant’s demonstrated limitations in memory, sequencing, prioritizing, organization, initiation, multi-tasking and concentration impact his functioning in all domains.

Evidence on Behalf of the Applicant

31The applicant and his father testified at the hearing, as well as Dr. Marshall, Mr. St. Germain and Ms. Baird. I found all three of the treatment providers to be credible, reliable witnesses.

32Mr. St. Germain first saw the applicant in August 2016 when the applicant was still waiting for a bed in the Rehabilitation Hospital. He also worked with the rehabilitation team including Dr. Marshall to put together a plan for the applicant’s discharge from hospital. Over the course of the next couple of years, Mr. St. Germain continued to meet with the applicant regularly to work on community-based life skills and cognitive rehabilitation. In total, he has seen the applicant about 60 times since the accident.¹⁴ Ms. Baird was seeing the applicant biweekly after the accident. She met with the applicant in person approximately 50 times, and also provided assistance over the phone frequently.¹⁵ The voluminous documentation from the applicant’s treatment providers indicates that although there has been some improvement over time, the applicant continues to exhibit significant cognitive and behavioural issues limiting his ability to return to his pre-accident activities and function.

33The applicant underwent a neuropsychological assessment by Dr. Angela Stewart, dated July 26, 2018.¹⁶ She noted that the applicant continued to experience difficulties with fatigue, initiation and motivation in the absence of cueing, and organizational and planning deficits. He continued to have issues with insight and awareness into his cognitive deficits. The applicant’s performance on validity testing fell within normal limits. Dr. Stewart determined that the applicant’s pattern of cognitive weakness was consistent with an individual experiencing genuine cognitive impairment, and there was no evidence of feigning or exaggeration. His test results showed moderate to severe intellectual and academic deficits, and his scores fell well below that expected of an individual who wanted to pursue post-secondary education.

34In addition to the foregoing evidence regarding the applicant’s activities, consistent with the Court of Appeal’s approach in Heath I granted greater weight to those which the applicant identified as being important in his pre-accident life, including education, driving, basketball, and his family and social life.

Education

35The applicant grew up speaking Somali and English in the home, and completed elementary and high school in French. Education was very important to the applicant and his family. He had been a full-time student for his entire life. His grades were average in high school, but he graduated in June 2016 with both his high school diploma and his Bilingualism Certificate.¹⁷

36The applicant submitted evidence that he was supposed to start a computer science program at […] College in September 2016, but had to withdraw as a result of the accident. The respondent disputed whether the applicant was actually enrolled in the program. As agreed by the parties, I make no findings in that regard, but I accept that it was at least the applicant’s intention to pursue post-secondary education.

37When discharged from the hospital, Dr. Marshall had indicated that the applicant should wait a year until September 2017 before returning to school. However, the rehabilitation team decided to use school as a rehabilitation goal, as part of an effort to get the applicant to “buy into” his treatment. The applicant made several attempts to return to school after the accident, but has been unsuccessful each time.

38The first attempt occurred in the winter of 2017. The applicant attended an adult high school near his home, called […]. Testing revealed that the applicant was not ready for college prep courses. Despite having successfully graduated high school recently, his math skills were assessed at grade 6 to 8 level, and his English and French skills were at a pre-high school level. The applicant was encouraged to take a step back and work on study skills, reading, etc. An entry level French course was suggested to work on writing skills, and a learning strategies course to work on the applicant’s difficulty with organization and time management.

39The applicant attended classes at [the adult high school] three mornings a week; however, his attendance was extremely poor, and he stopped going at the end of March 2017. The applicant did not tell his family or his rehabilitation team for several weeks that he was no longer attending.

40The second attempt was for a co-op placement in July 2017 through [the adult high school]. The applicant missed deadlines for completing paperwork, he failed to attend a crucial information session and was unsuccessful at finding a placement. This attempt essentially failed before it started.

41The third attempt was at an alternative high school in September 2017. The applicant tried refresher courses in grade 12 math and English. He stopped attending classes in October 2017, but again did not tell his family or team until a few weeks later.

42The applicant made a fourth attempt at returning to school in the winter term of 2018. The rehabilitation team helped him enroll in an introductory course in Computer Essentials at […] College. The applicant and Ms. Baird met with a counsellor from the college to arrange exam accommodations, a note taker etc. With significant assistance from Mr. St. Germain and Ms. Baird, the applicant was able to obtain high course marks, but did not hand in all assignments and failed the final exam. The applicant said that he passed, but in fact the transcript reveals that he failed.¹⁸

43Despite having successfully graduated high school with a bilingualism certificate, and making repeated attempts to continue his education, even with significant assistance from his rehabilitation team and working with the school to arrange accommodations, the applicant has been completely unsuccessful at any attempt to return to school since the accident.

Driving

44The respondent submits that this category should be “transportation”, not driving. The respondent argues that the applicant is capable of taking a bus to get around and therefore he does not have a complete inability with respect to transportation.

45I find it unlikely that any eighteen-year-old would agree that having a driver’s license and being able to drive is akin to being able to take a bus to get around. I accept that the freedom and independence that comes with the ability to drive is important to this young man. The applicant testified that his main focus right now is getting his license back, even more than returning to school.

46The applicant got his license in 2014.¹⁹ He was allowed to drive his father’s vehicle. The applicant was responsible for driving the family around when his father was away.

47It appears that at the time of the accident, the applicant’s driver’s license was suspended administratively as a result of a speeding ticket.²⁰ As stated by Dr. Marshall, it cannot be said that every teenaged boy given a speeding ticket does not possess the cognitive and functional capacity to drive.

48On the recommendation of Dr. Marshall, the applicant’s driver’s license was suspended due to his head injury before he was discharged from hospital.²¹ Dr. Marshall did not believe the applicant had the cognitive ability to drive after the accident.

49The applicant was eager to get his license back, so Dr. Marshall referred the applicant for a driving evaluation at the Rehabilitation Centre with Lynn Hunt in September 2017. Ms. Hunt recommended that his license remain suspended. The applicant performed so poorly that he was not considered a candidate for driver retraining.²² Ms. Hunt concluded that driving lessons were not appropriate at the time. Ms. Hunt indicated that improvement may not occur, but if it does it will require many months of cognitive retraining.

50The applicant repeatedly expressed to his rehabilitation team how much he wants his license back, but it is up to the team to determine if he has had sufficient improvement to consider a reassessment. To date, no driving lessons have been arranged, nor has the applicant been reassessed for driving. His license remains suspended due to his brain injury. The applicant must rely on his younger brother or other family members to drive him around, which is a source of conflict between the siblings.

Basketball

51The applicant testified that “basketball was his life”. Prior to the accident, the applicant played basketball every day. He would play at school during his lunch hour in the gym. After school he played with friends at the local YMCA. The applicant was also a member of [a youth basketball league] since grade 10. He would play with the league on Fridays after school and Saturday morning.

52The age limit for the youth basketball league was 18, so he would have had to leave the league when he turned 19, two days after the subject accident. However, given the applicant’s obvious enjoyment of the game, I find it unlikely that he would have completely stopped playing basketball when he turned 19 just because he could no longer play for that particular league.

53Following the accident, the applicant was instructed by Dr. Marshall that he could no longer play basketball. Dr. Marshall testified that it was fine for the applicant to “shoot hoops” by himself, or maybe very carefully with his closest friend, but the applicant could not risk another head injury. Dr. Marshall testified that he knew basketball was very meaningful to the applicant and he wanted clearance to play at a more competitive level, but the applicant was at an increased risk of reinjury because he overestimates his physical and cognitive abilities, so he cannot return to organized sports.

54I accept that playing basketball with his friends in a competitive environment was very important to the applicant and that he spent most of his free time on the basketball court. I find that being able to shoot hoops, as described by Dr. Marshall, cannot be said to truly be “engaging in” playing basketball. I find that the applicant’s ability to play basketball is sufficiently restricted such that it cannot be said that he participates in this important pre-accident activity in any meaningful way.

Family and Social Life

55The applicant’s father testified that as an immigrant family it was important for him to see his son succeed. He encouraged the younger children to follow the applicant’s lead. The applicant was the first in the family to graduate in Canada. He was a good role model for his siblings and would help them with their homework. The applicant’s father felt that they had a close relationship; the applicant was respectful and never had an attitude. He testified that “I knew I didn’t have to worry about him when he would leave the house”.

56The applicant’s father was comfortable with the applicant driving the other family members around. The applicant used to visit his grandmother all the time before the accident and take her for walks. The applicant’s father testified that the applicant attended mosque about twice a week prior to the accident, usually on Saturday and Sunday.

57Since the accident the applicant’s father feels he can no longer depend on his son. The applicant has serious issues with forgetfulness. He needs help all the time, he is disorganized, has mood swings, gets frustrated and easily distracted. The applicant’s father testified that the relationship between the applicant and his siblings has changed a lot. They do not communicate because the applicant gets emotional. The applicant talks back to his mother now. He has not attended mosque in over a year.

58The applicant described himself as an outgoing, nice guy before the accident, supportive, a bit of a jokester, who loved basketball. While basketball was his focus, not his grades, the applicant testified that he was a dedicated student and never had any problems with his teachers. When he was not playing basketball, he would go out with friends to restaurants, or go watch UFC fights.

59Since the accident, the applicant has become antisocial. He feels that everyone is treating him differently, like he is “handicapped”. When he realized the extent of his injuries, he felt left out of society. He stays home all the time and plays videogames. Sometimes his friends come over and play videogames or watch TV. They do not play basketball anymore. The applicant testified that he has only been to mosque twice since the accident.

60The applicant testified that being the eldest in the family was important to him. It came with responsibility to make sure that siblings listen to him and his parents, to be a good role model and help his younger siblings. His little sister used to come watch all his basketball games. The applicant testified that prior to the accident, his father trusted him. Now his father is constantly checking up on him, calling to see where he is, checking in on him even when he is sleeping. The applicant testified that his mother checks up on him even more than his father – she is constantly calling to see where he is, if he is alright, and when he will be home.

61The applicant’s mother reported that he is mad all the time and never goes to see his grandmother anymore.²³

62There has been somewhat of a role reversal between the applicant and his younger brother. Before the accident the brothers were best friends. They were always together. The applicant’s brother is now a full-time university student. He also works three days a week at the community centre and before school started he had another full time job.²⁴ Now the applicant’s brother and father will give him spending money. The applicant testified that his brother has a car. He rides as a passenger, and wishes he was driving.

CONCLUSION

63Having considered the evidence before me, I find that the applicant has suffered a complete inability to carry on a normal life as a result of the accident. The applicant’s severe traumatic brain injury has resulted in cognitive impairments that continuously prevent him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Consistent with Heath, in determining whether the necessary threshold had been met, I granted greater weight to the activities the applicant felt were important to his pre-accident life, particularly his education, driving, basketball and his family and social life. I accept the conclusions and recommendations of the respondent’s catastrophic assessments by Dr. Wiseman and Ms. Nicholson.

64The applicant was a full-time high school student in the year before the accident. He had just graduated and intended to pursue post-secondary education. He made multiple attempts to return to school after the accident, but was unable every time even with significant support from his rehabilitation team.

65The applicant had a G2 driver’s license before the accident, and would drive himself, his mother and siblings around in his father’s vehicle. The applicant’s license has been suspended due to his brain injury. The applicant underwent a driving reassessment, which he failed and was determined not to be a candidate for retraining.

66Basketball was very important to the applicant – he played every day with friends at lunch, after school and on weekends. On the advice of Dr. Marshall, the applicant can no longer play any form of competitive basketball due to concerns of a further head injury. He may shoot hoops alone, but is not able to jump, or actually play in a game. It cannot be said that the applicant is able to engage in basketball in a meaningful way compared to before the accident.

67I find that the applicant’s family and social life have been affected by the accident. He lacks insight into his injuries and requires constant cueing for all activities. He does not socialize as much, does not attend mosque, and does not visit with his grandmother. The family dynamic has changed, with the applicant’s younger brother taking on the applicant’s previous roles.

68In light of the foregoing, I find that the applicant has been continuously prevented from engaging in substantially all of his pre-accident activities. The applicant has suffered a complete inability to carry on a normal life as result of the accident and is entitled to weekly non-earner benefits from February 1, 2017 to date and ongoing.

INTEREST

69I find that the applicant is entitled to interest in accordance with the Schedule, to date.

AWARD PURSUANT TO REGULATION 664

70Section 10 of Ontario Regulation 664, R.R.O. 1990 states that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award with interest.

71Just because I have found that the respondent was wrong in its denial of the non-earner benefit does not automatically entitle the applicant to an award. An insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions.²⁵

72The case law has established that an award should be granted only where there was unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

73The respondent cited a Tribunal decision which determined that the threshold is not met when an insurer withholds payment based on its section 44 examinations.²⁶ The respondent relies on the conclusions of its section 44 examinations in denying the applicant’s entitlement to the disputed benefits. However, I find that “papering” a termination by obtaining a compliant report from an assessor is not necessarily protection against an award if an insurer closes its mind to other information available to it that may affect its decision.²⁷

74In this case, I find that the respondent acted unreasonably when it denied benefits to the applicant based on the conclusions of its section 44 assessors. The reports of Dr. Schmidt determined that there was some impairment, it was suspected to be exaggerated, and the data was found to be invalid. However, I find that the respondent ignored other medical information available to it in maintaining its denial, including the respondent’s own catastrophic assessment reports. I find that after receiving the report of Dr. Wiseman in which she concludes that Dr. Schmidt’s interpretation of the data was incorrect – the scores fell within a valid range – and given her conclusions about the applicant’s level of impairment, the respondent acted unreasonably in continuing to deny the applicant’s claim for non-earner benefits. The respondent has an ongoing obligation to consider new information as it becomes available and reconsider its prior determinations.

75The respondent called no witnesses to testify at the hearing, but forced the applicant to proceed to a four day in-person hearing despite the conclusions of its own catastrophic assessors which challenged the conclusions of the assessors the respondent relied upon in refusing to pay the benefits. I find this conduct amounts to unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

76The quantum of a special award should be proportionate to: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; and (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.²⁸ The Tribunal has added a seventh factor, being the overall length of the delay.²⁹

77I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld. I have also taken into account the applicant’s vulnerability given his brain injury, and dependence on others. The respondent should have taken a second look at the evidence prior to the hearing, however, the catastrophic assessment reports were received only a few days prior to the hearing. Considering these factors, I find that the appropriate quantum is 40% of the amount to which the applicant is entitled for the disputed benefits, plus interest in accordance with the Schedule. I leave the calculation of the exact amount of the award and interest to the parties – given that the parties agreed that the quantum of benefits is not to be determined by the Tribunal in this hearing. If there is disagreement in the calculation of this amount, either party may contact the Tribunal to schedule a case conference with me within 30 days of the release of this decision.

ORDER

78The applicant is entitled to weekly non-earner benefits from February 1, 2017 to date and ongoing. The benefits shall be paid forthwith, with interest in accordance with the Schedule.

79The applicant is entitled to an award under Regulation 664 corresponding to 40% of the amount to which he is entitled to on the date of this decision, with interest in accordance with the Schedule.

Date of Issue: October 11, 2019

___________________

Kate Grieves,

Adjudicator

Footnotes

1. 12009 ONCA 391.
2. 2Exhibit 12 – disability certificate and attachments.
3. 3Exhibit 15 page 404 to 406.
4. 4Dr. Mendis neurological assessment dated April 13, 2017 and Dr. Simon orthopedic assessment dated April 13, 2017.
5. 5Exhibit 26, Tab 1.
6. 6Exhibit 26, Tab 5.
7. 7Exhibit 26, Tab 7.
8. 8Note: The transitional rules apply to this policy. The applicant’s entitlement to NEB is pursuant to the 2010 version of the Schedule, while the criteria for catastrophic determination was based on the post-June 1, 2016 version of the Schedule.
9. 9Exhibit 27.
10. 10Exhibit 27 at page 19 of 81.
11. 11Exhibit 27 at page 23 of 81.
12. 12Exhibit 27 at page 56 of 81.
13. 13Exhibit 27, page 64 of 81.
14. 14Testimony of Mr. St. Germain, January 10, 2019.
15. 15Testimony of Ms. Baird, January 10, 2019.
16. 16Exhibit 20.
17. 17Exhibits 1 and 2.
18. 18Exhibit 5.
19. 19Exhibit 29.
20. 20Exhibit 29.
21. 21Exhibit 22.
22. 22Exhibit 7.
23. 23Exhibit 27, page 64.
24. 24Testimony of applicant’s father, January 8, 2019.
25. 25Persofsky v Liberty Mutual Insurance Company (FSCO P00-00041, January 31, 2003).
26. 2616-003638 v Aviva, 2018 CanLII 9565 (ON LAT).
27. 27Cowans and Motors Insurance Corporation (FSCO A09-003237, October 15, 2010).
28. 28Persofsky.
29. 2917-006757 v Aviva, 2018 CanLII 81949 (ON LAT) at para 45.