BROWN & PARTNERS LLP FSCO SUMMARIES JUNE 2015

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1 Lin and State Farm Mutual Automobile Insurance Company, FSCO A Date June 23, 2015 September 10, 2009 Alan Smith 1. Medical Benefits (assistive devices and driving CD ROM from Fairview Assessment and Pacific Assessment Centre); 2. Cost of Examinations (family and social assessment and driving assessment from Fairview Assessment and Pacific Assessment Centre); 3. Special Award; and 4. Expenses The applicant sustained soft tissue injuries as a result of the MVA. The applicant sought treatment at Pacific Assessment Centre and Fairview Assessment Centre. The two assessment centers sent the insurer copious amounts of OCF-21s, OCF-18s and OCF-22s. The insurer argued that the two assessment centres perpetrated a scheme to manipulate the Schedule to force the insurer to pay for medical benefits which were not reasonable and necessary. The insurer failed to meet the deadlines under s.38(8.2) of the Schedule and did not provide OCF-9s rejecting the OCF-18s until February 2011, many months after their submission. The insurer admits that the rejection of claims was based entirely on a blanket policy of refusing any claims associated with Fairview and Pacific clinics. The key question in this case is: can it be determined whether the goods and services in the application were actually provided to the applicant during the period described in s.38(8.2)(2) of the Schedule. The insurer argues that the flooding of documentation on it by the assessment centres was an abuse of process. It also argued that claims are being made for the benefit of the assessment centres, not the applicant. The applicant is entitled to all medical benefits expenses and payments for the cost of examinations. The insurer was liable to pay a special award in the amount of $17, Rule 65.7 of the DRPC does not permit an arbitrator to override the mandatory deemed approval laws in the SABS. The arbitrator relied on the meaning of the word shall, which is interpreted to be mandatory. The arbitrator rejected the insurer s argument that the claims being advanced are for payments to Fairview and Pacific rather than the applicant. Again, the arbitrator was bound by the Insurance Act and Schedule neither of which provide the ability to relieve an insurer of liability because an applicant is somehow detached from the claims being advanced or because a service provider has been administratively sanctioned. The applicant gave credible and forthright testimony that she actually received the goods and services in question. They were also provided to the applicant pursuant to the Schedule s.38(8.2). The insurer acted unreasonable in denying the applicant s assistive devices for almost 5 years. The insurer s legal arguments had no basis in law. Finally, the insurer acted in a high-handed manner in denying payment once OCF-18s were submitted and the provisions of the schedule s.38(8.2) became operative. 1

2 Bustamante and The Guarantee Company of North America, 2015 ONCA 530 Date July 8, 2015 Justices Hoy, Epstein and Huscroft JJ.A. Appeal of summary judgment statutory accident benefits limitation period Ramsay J. had dismissed the plaintiff s claim for accident benefits on the basis that the limitation period had expired. On August 18, 2004, the plaintiff applied for and received income replacement benefits ( IRBs ). On September 1, 2004, the defendant sent an OCF-9 notifying the plaintiff that she did not qualify for non-earner benefits ( NEBs ). The defendant discontinued IRBs on July 26, 2006 on the basis of a post-104 assessment. The plaintiff returned to work in September of On September 25, 2009, the plaintiff advised she intended to pursue a claim for NEBs. On January 19, 2010, the defendant advised the plaintiff that she was not entitled to NEBs. After mediation failed, the plaintiff brought an action for damages for breach of contract against the defendant. Ramsay J. granted summary judgment and dismissed the action on the basis that the limitation period for the plaintiff s claim for NEBs began either on September 1, 2004 when the NEBs were refused or on July 26, 2006 when IRBs were discontinued. In either case, the plaintiff failed to bring her action within two years. Appeal dismissed. Summary judgment upheld and plaintiff s claim dismissed. The Court of Appeal relied on the court s decision in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111. In Sietzema the court upheld summary judgment dismissing the claimant s claim on the basis that it was brought outside the limitation period, reasoning that the refusal to pay NEBs in the OCF-9 triggered the limitation period in s. 51(1) of the SABS, which required mediation to be commenced within two years after the insurer s refusal to pay the amount claimed. By providing the OCF-9 to the plaintiff, the defendant gave clear notice of the plaintiff s rights to mediation, followed by arbitration, litigation or neutral evaluation if she wished to dispute the refusal or reduction of benefits. It also gave her clear notice of the two-year limitation period. The defendant s refusal to pay NEBs in the OCF-9 triggered the limitation period in s. 51(1) of the SABS. 2

3 Date Zhang and State Farm Mutual Automobile Insurance Company, FSCO A July 2, 2015 June 1, 2009 Jeff Musson Motion to compel EUO attendance and motion for productions The applicant applied for various benefits under the schedule. The insurer terminated benefits and the applicant applied for arbitration. The insurer requested that the applicant attend an EUO. The applicant failed to attend the EUO. He advised that he would only attend an EUO once his accident benefits were reinstated. The insurer brought a motion to compel the applicant to attend an EUO. The insurer also brought a motion for productions. The applicant shall attend an EUO within 90 days of the date of this decision. The applicant has fulfilled all production orders to the best of his ability and the insurer s productions motion is denied at this time. The applicant s demand for benefit reinstatement before an EUO is not a provision listed in the Schedule and is not listed in Section 33 as a valid reason for an applicant to not make themselves available for an EUO. The arbitrator relied on prior Arbitration motion rulings that were similar to this case, namely Singh v. State Farm and Michaud v. State Farm, that have ruled in favour of the insurer s right to have the applicant attend an EUO. One way for the insurer to properly adjust the applicant s file is through an EUO. With respect to productions, the applicant provided proof of each request as the effort put forward to fulfill productions requested. The arbitrator was satisfied that the applicant requested the documents but has not been able to obtain them (it could be reasonably expected that some service providers are not in business given that the MVA occurred in 2009). 3

4 Date Lee and Yau and State Farm Mutual Automobile Insurance Company, FSCO A & A and A & A June 30, 2015 September 8, 2010 and November 18, 2011 Morris Winer Preliminary Issue Hearing s.55.2 of the Schedule are the applicants precluded from arbitrating claims because they failed to attend insurer examinations (IEs)? The applicants, husband and wife, were injured in two MVAs and brought four claims for accident benefits. Following MVA #1 the applicant s applied for housekeeping and home maintenance benefits. The insurer sent notices that it required IEs by an occupational therapist and physiatrist. The applicants failed to attend the OT exam and left the physiatry exam before it was completed. The applicants argued that the insurer did not provide a MAG certified interpreter. Following MVA #2, the applicants submitted OCF-18s. The insurer arranged an IE. The applicants did not attend once again because there was no MAG certified interpreter. Arbitration was scheduled for September The insurer brought a preliminary hearing regarding the applicants failure to attend the IEs. The applicants are precluded from mediating and therefore arbitrating their accident benefits claims because they failed to attend IEs. There was evidence showing that the applicants had considerable knowledge of English. They have also attended IEs and followed detailed instructions from the examiners with the help of non-accredited interpreters. The failure to attend the IEs was not reasonable. The applicants failed to attend IEs in accordance with the notices and in one instance left early before the examination could be completed and then failed to attend the make-up examination. The insurer has been deprived of the opportunity to assess the claims. Neither the Insurance Act, the SABS, nor the Dispute Resolution Practice Code require a MAG Accredited Interpreter. There are three recent decisions on similar facts which have also held that the insured is not entitled as of right to have a MAG Accredited Interpreter. 4

5 Ambachew v. Royal & Sunalliance, 2015 ONSC 4202 July 7, 2015 October 5, 2012 Justice Carole J. Brown, J. The plaintiff brought a motion for partial summary judgment (Rule 20) seeking payment of 2 treatment plans. The Court had to determine if partial summary judgment was warranted, or if there was a genuine issue requiring a trial. The insurer denied treatment exceeding the MIG. The plaintiff sued for med/rehab, costs of exams, attendant care and punitive damages. The plaintiff sought judgment on 2 of 17 treatment plans in dispute (the other 15 would be determined at trial): a $2000 chronic pain assessment and treatment of $9, The plaintiff alleged that the insurer failed to provide reasons for the denials as per s. 38(8) and (11) SABS. The denial notices indicated MIG limit exceeded and failure to provide relevant information, and the plaintiff also failed to attend s. 44 IEs. Motion for partial summary judgment dismissed with costs. Partial indemnity costs to the insurer in the amount of $7, Justice Brown did not find that the insurer s denials failed to comply with the SABS, and found that the plaintiff did not comply with the insurer s requests to attend the S. 44 IEs. Rule 20 and Hyrniak v. Mauldin, (2014, SCC 7) were analyzed. The judge must be able to determine, based on the evidence before her, whether or not a matter can be fully disposed of without a full trial involving live testimony. The major concern was that a partial summary judgment may lead to duplicative proceedings and inconsistent findings. All issues and claims were related and intertwined. It would not be possible to justly determine 2 issues out of 17, when 15 of 17 were going to trial in any event. As such, there were genuine issues for a full trial. 5

6 Muraleethasan and State Farm Mutual Automobile Insurance Company et al. (FSCO A ) June 11, 2015 December 20, 2009 Richard Feldman Motion by the insurer for an order compelling Canada Border Services Agency (CBSA) to provide documents concerning Mr. Jagjit Singh, alleged driver of the other vehicle, in a possible staged accident case. State Farm suspected a staged MVA. It sought information from a non-party (CBSA) about another non-party (Mr. Singh), the alleged driver of the other vehicle. The insurer s counsel had reason to believe that Mr. Singh was deported and wanted the file documents. Motion denied. The insurer s affidavit in support of the motion lacked a sufficient evidentiary basis. The beliefs of wrong-doing and deportation of Mr. Singh were based on word-of-mouth from one lawyer to another. The insurer could have exhausted other avenues to obtain the information sought. The CBSA opposed the motion alleging the Privacy Act, which also played a role in the decision. The arbitrator exercised caution in light of the potentially sensitive information about a non-party. The arbitrator was not satisfied on a balance of probabilities that the documents requests were reasonably required to ensure a just and fair hearing. The criteria for a non-party productions order under s. 67 of the DRPC were not made out (i.e. reasonable efforts to obtain the document and reasonably required to ensure a just and fair hearing). 6

7 Cervenakova and TD General Insurance Company (FSCO A ) June 30, 2015 May 11, 2010 Jessica Kowalski Claim for Non-Earner Benefits, Attendant Care, Housekeeping, and Special Award. The deciding issue was credibility of the applicant with respect to her significant pre-mva health issues that she did not report in the accident benefits claims and arbitration process. Rear-end MVA with alleged soft tissue and psychological impairment. The applicant had a significant documented prior health history including schizophrenia and physical pain. She was receiving disability pension (ODSP) prior to the MVA (since 2006) due to anxiety (possible schizophrenic paranoia), musculoskeletal pain and dependency on her husband for pre-mva housework and personal care. The insurer s position was that the applicant attempted to attribute her conditions largely on the MVA, while completely omitting to report her long-standing medical history to all post-mva assessors. The insurer argued that she misled the assessors rendering the assessments inaccurate. Application for arbitration dismissed. The issues in dispute depend primarily on the applicant s subjective reporting (i.e. her lifestyle and need for care), which depends largely on credibility. The applicant made numerous omissions and distortions of the truth to assessors about her significant pre-mva health issues and her functionality pre- and post-mva. She attempted, both to assessors and in her hearing testimony, to say that she enjoyed a largely happy, healthy and active life pre-mva and that her issues were caused by the MVA. She claimed that she did much of the pre-mva housekeeping; however, prior to the MVA, her husband received ODSP benefits as her caregiver, including for housekeeping. The hearing testimony of the applicant and of her husband was found to have very limited credibility. Since the case turned on credibility, and it was found that the applicant s evidence was not credible, the applicant failed on each claim. 7

8 Baldassi and Primmum Insurance Company (FSCO A ) July 6, 2015 March 5, 2008 Patrick Bowles Is the OCF-18 for private school tuition reasonable and necessary? The applicant, Kristen Baldassi, minor (age 3 at MVA) represented by a litigation guardian (a parent), was injured in a severe T-bone collision. The minor s grandfather, died on scene. Two other passengers were seriously injured. The applicant was in an infant s car seat and was not physically injured aside from minor bruising. Injuries were anxiety, disrupted sleep, behavioural and emotional issues, and learning disabilities. After the MVA, the minor completed about 2 years at public school (grades 1 and 2) with much difficulty. Her parents started her at private school for grade 3 in September 2012 (which was a catch up on grades 1 and 2). She had to repeat grade 3, but with improved results. She submitted an an OCF-18 for private school tuition. The insurer denied it as not reasonable and necessary, relying on a s. 44 GP Assessment. The applicant is entitled to private school tuition in the amount of $15,560, plus arbitration expenses. The arbitrator took issue with the insurer s denial based on a GP assessment, as the GP s experience was with adults and the neuromusculoskeletal system. On the other hand, the OCF-18 was based on neuropsychological issues (anxiety, behavioural and learning) and an associated report. The s. 44 IE GP was deemed unqualified for the issue in dispute. As a result, no witnesses appeared for the insurer. Therefore, Primmum s basis for denial was not considered. The applicant produced testimony of the family physician, a clinical neuropsychologist, and the mother (also a teacher). The evidence revealed that the minor s participation in a private school with smaller classes was beneficial for her social and academic development. The insurer relied on legal arguments and challenged the applicant s evidence. Primmum argued that the treatment plan was incurred prior to submission (s. 38(1.1) SABS). This was not accepted as the respondent knew of the family s efforts to get help for funding prior to submission, and knew of the impairments. Also, the behaviour of the insurer (scheduling a s. 44 IE after receipt of the OCF-18) amounted to waiver of non-compliance. The arguments on causation, no alternatives sought, and lack of reasonableness and necessity also failed. The applicant met the test for reasonable and necessary and the private school funding was approved under s. 15 SABS (rehabilitation benefits, which includes academic training). 8

9 Date Clarkson and Economical Mutual Insurance Company, A June 18, 2015 February 28, 1996 Susan Sapin On May 12, 2015, the insurer brought a motion to stay an arbitration scheduled to begin on November 30, 2015, on the basis that the applicant has not produced requested records as undertaken within 60 days of a October 23, 2014 pre-hearing. The insurer further requested orders for production of records by third parties in the U.S.A. The applicant was 4 years old at the time of the accident. The applicant moved to Chicago in The applicant made no benefit requests for 14 years from On December 12, 2012 he submitted over $1 million in claims including a catastrophic impairment determination, AC, HK, education benefits, medical/rehab benefits, and various assessments. Causation is also at issue. The insurer refused the claim on November 6, The insurer requested outstanding third party records from an American school, employers, and doctors on the basis that they are relevant to the issues in dispute. The insurer maintained that it had very limited information about the applicant s American schooling, employment, ADLs, and medical history, other than medical-legal assessments related to a tort claim from The stay request was denied. Sapin made orders for: (a) the production of a number of the outstanding documents, including orders against American third parties; and, (b) the applicant to provide contact information for all his previous employers, treating physicians and health care practitioners from 1997 forward, with authorizations for their files. The arbitrator further found that if the ordered documents were not produced 90 days prior to the November 30, 2015 arbitration date, either party may request an adjournment. Sapin found that the majority of the requested documents were relevant and reasonably necessary to the issues in dispute. The arbitrator found that much of the information the insurer needed to assess the claim is in the control and possession of third parties in the U.S.A. The insurer did not have access to the usual assessment routes of an OHIP summary, or access to any substantial discovery procedure. The insurer is therefore forced to rely almost exclusively on the applicant s disclosure, including names of health care practitioners and employers, and to the disclosure of their files. Specifically, the arbitrator issued third party orders for disclosure, even though many of these persons/companies are located in the USA. 9

10 Date Fernandes and Western Assurance Company, A September 30, 2015 January 17, 2007 Suesan Alves 1. The insurer seeks an order requiring the applicant to attend a further psychiatric IE with a new psychiatrist because the previous psychiatric examiner died. 2. If the insurer is successful, should they be required to fund a rebuttal assessment to a maximum of $2,000? In September 2009, the applicant was examined by a psychiatrist of his choice in support of his catastrophic impairment application. In March 2010, the insurer completed IE assessments by a psychiatrist, a neurologist, and an occupational therapist. In November 2010, the applicant obtained a psychiatric rebuttal report. Dr. Shapiro, the psychiatrist who had performed the insurer s psychiatric IE subsequently passed away. The applicant opposes a further IE, but is prepared to attend if the insurer will fund a rebuttal report. The insurer submits that if it is to fund a rebuttal report, that the cost of the assessment should be limited to $2, A further psychiatric IE is reasonably required. 2. As a condition of the IE assessment the insurer is required to fund a rebuttal assessment to a reasonable cost, and not limited to $2,000. The hearing was adjourned pending the applicant s attendance at the requested IE and the completion of the rebuttal assessment. 1. Despite the intrusive nature of a psychiatric assessment, given Dr. Shapiro s death, a further examination is reasonably required in the interest of fairness. 2. Alves found that the insurer fund a rebuttal psychiatric report on the same basis of fairness, so that the parties, insofar as possible, remain on the same footing as they would have been, had Dr. Shapiro not died. The arbitrator found that the applicant s right to a rebuttal assessment was not removed by subsequent amendments to the SABS. For similar reasons, she was also not persuaded that the cost of the rebuttal assessment be limited to $2,000, as requested by the insurer. 10

11 Date Muirhead and Dominion of Canada General Insurance Company, A June 26, 2015 September 17, 2010 John Wilson Should the OPP be required to release its file concerning their investigations into the events of September 17, 2010? The applicant was a passenger on an ATV which collided with a Dodge Caravan on Highway 7 near Marmora, Ontario. Neither the applicant nor the driver of the ATV was the owner of the ATV involved in the accident. The applicant has no memory of the circumstances surrounding the accident. The driver of the ATV is dead. The actual owner of the ATV has subsequently denied giving any permission to the use of his ATV to the applicant or the deceased driver. The insurer denied benefits on the basis that the applicant ought to have been aware that the driver was operating the motor vehicle without the consent of its owner at the time of the accident. The OPP investigated the September 17, 2010 accident and specifically declined to release their investigation file. Counsel for the applicant brought this motion for the production of the complete and unredacted OPP file for use in this accident benefits arbitration. Yes, the OPP is required to release its file concerning their investigations into the events on September 17, Wilson made a third party order for the complete and unedited OPP file. Given the circumstances in the case and the nature of the evidence generally assembled in a police investigation, the OPP file was found relevant and producible in this arbitration. Wilson reviewed a Wagg order in the context of an accident benefit arbitration. He found that FSCO arbitrators can make production orders against the police and the Attorney General, pursuant to s.67.7 of the SABS O.Reg 34/10, which provides for motions to obtain relevant documents from third parties, and s.22 of the Insurance Act, which provides for the powers of arbitrators to compel the production of documents. Wilson further noted that the OPP and the Attorney General were put on notice of the hearing and served with the motion materials. Their absence from the hearing suggested no overarching public interest that would be harmed by the disclosure of the files in this accident benefit arbitration. 11

12 Date Niforos and Allstate Insurance Company of Canada, A June 23, 2015 March 1, 2010 Suesan Alves Preliminary issue hearing: Do the SABS O.Reg 403/96 permit the insurer to deduct CPP disability pension benefits which the applicant had been receiving for 16 years pre-accident, and continued to receive post-accident. The applicant was claiming a $185 weekly non-earner benefit as a result of impairments she sustained in a MVA on March 1, The parties agreed that she met the qualification for the non-earner benefit and that it is payable for 208 weeks. At the time of the accident the applicant was receiving CPP disability benefits for which she had qualified in The applicant continued to receive her CPP disability benefits following her 2010 MVA. The insurer submitted that the benefit is deductible as an income continuation benefit plan. The insurer is not permitted to deduct the applicant s CPP disability benefits from her non-earner benefits payable as a result of the accident. The applicable provisions of the SABS are ss. 12(4), and s.60. Ss.12(4)(1) of the SABS provides that the insurer may deduct from payable non-earner benefits net weekly payments for loss of income that are being received by the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan. As the applicant was receiving CPP disability benefits for 16 years prior to her MVA, the arbitrator found that the applicant was not receiving the benefits as a result of her MVA. The arbitrator also found that the applicant s CPP disability benefit is not a temporary disability benefit as enumerated in s.60(3) of the SABS. Comments The CPP disability benefits the applicant was receiving for 16 years prior to her accident were neither by their origin nor by their nature caused by the accident nor temporary, and therefore did not fit within the requirements of the SABS O.Reg 403/96. S.2(9) of the SABS O.Reg 403/96 defines CPP disability benefits as payments for loss of income. The arbitrator was correct in saying that the CPP disability benefit must be triggered by the accident, but incorrect in applying s.60 of the SABS O.Reg 403/96. 12

13 name Justices Scarlett v. Belair Insurance Company Inc. and Financial Services Commission of Ontario, 2015 ONSC 3635 June 5, 2015 September 18, 2010 Divisional Court Justices Gordon, Molloy and Corbett Should the order of Wilson, that the applicant is entitled to medical and rehabilitation benefits beyond the $3,500 MIG limit, be reinstated? The applicant s policy renewed after September 1, He sought medical and rehabilitation benefits totalling more than $3,500. The insurer denied his entitlement to those benefits, on the basis that the applicant Scarlett provided no compelling medical evidence that he suffered a pre-existing medical condition, documented by a health practitioner before the accident, that would prevent him from achieving maximal medical recover from the minor injury if treated within the MIG limit. [s. 18(2)] Wilson held that s. 18(2) creates an exclusion from coverage, such that the insurer had the onus of establishing that the applicant could be adequately treated within the MIG. The arbitrator held that the insurer had not met its onus, such that the applicant was entitled to medical and rehabilitation benefits outside the MIG limit. On appeal, Director's Delegate Evans overturned that decision. He found that s. 18(2) is a clause that grants coverage. Accordingly, the applicant bore the burden of establishing that his pre-existing condition entitled him to benefits above the MIG limit. He also held that compelling medical evidence as referenced in s. 18(2) means something more than simply credible evidence. What exactly will meet the test depends on the circumstances of the case. The Divisional Court upheld his decision. Wilson s decision is not reinstated. The Director Delegate s decision was reasonable and is affirmed. Sections 14 and 18 create three tiers of coverage: 1. A maximum of $3,500 for an impairment that is predominantly a minor injury; 2. A maximum of $50,000 if the impairment is not a minor injury and it is not catastrophic, or if the impairment is a minor injury but compelling medical evidence establishes that the insured s pre-existing medical condition prevents him from achieving maximum medical recovery if subject to the $3,500 limit; and 3. A maximum of $1 million if the impairment is catastrophic. The applicant bears the onus of establishing which tier he is entitled to. The applicant bears the onus of proof as to whether the insured suffered predominantly a minor injury. The MIG is not expressly incorporated into the SABS and incorporated only by a specific reference in the SABS. 13

14 The meaning of compelling evidence refers to the sufficiency of the evidence on the facts of the case. Matter referred back to a new arbitrator for a pre-hearing. 14

15 name Rezaiezadeh v. State Farm Mutual Automobile Insurance Company, FSCO A June 10, 2015 March 18, 2011 Arbitrato Deborah C. Anschell r 1. Is the applicant entitled to attendant care benefits, under s. 3(8)? 2. Is State Farm liable to pay a special award? 3. Interest and costs The 68 year old applicant was a pedestrian struck by a car in a parking lot. At the time of the accident, she was here on a 7 month visit to her daughters from Iran. Because of the accident, she could not return to Iran. She separated from her husband, attaining refugee status here. She receives ODSP. Initially, State Farm placed her under the MIG and denied the attendant care benefit on that basis. On July 5, 2011 the applicant underwent an examination under oath. She testified that she had not received any attendant care, because she could not afford to pay for it. At the prehearing on October 23, 2013, State Farm agreed that the applicant was not within the MIG. The reasons only say that State Farm received no additional medical documentation, but did receive new information at the pre-hearing upon which it changed its position. State Farm maintained its denial of the attendant care benefit, on the basis that nothing was incurred. 1. The applicant is not entitled to attendant care benefits. 2. The applicant is not entitled to a special award. 3. State Farm is entitled to costs. The applicant relied on s. 3(8) of the SABS, which allows an arbitrator to waive the requirement that an expense is incurred, if the expense was not incurred because the insurer unreasonably delayed or withheld the benefit. Section 3(8) only applies if it can be demonstrated that the insurer unreasonably denied or withheld the benefit, knowing that the applicant is impecunious. In this case, the passing statement during the examination under oath did not constitute adequate notice to the insurer that the applicant could not afford attendant care. If she or her lawyer had followed up, then the arbitrator would have found otherwise. 15

16 name Hassan v. State Farm Automobile Insurance Company, FSCO A July 17, 2015 July 25, 2011 Charles Matheson 1. Does the MIG apply to the applicant? 2. If not, is the applicant entitled to the medical and rehabilitation benefits sought? 3. Is State Farm entitled to repayment of $135.60? 4. Interest and costs. The applicant grew up in a refugee camp in Kenya, after leaving Somalia with his family. On July 25, 2011, he was in a minor accident. He attended at a clinic, and reported to his family doctor that he recovered when he stopped treatment in February In June 2012, the applicant underwent eye surgery because he was losing the vision in his left eye. The surgery was not successful and he was left with hands only vision in his left eye. He also had difficulty with the vision in his right eye. On June 20, 2012, he underwent an examination under oath. During that examination, he testified that he had recovered by the time he stopped therapy, and that he had resumed caring for his ailing mother and stepfather. He did not mention his recent surgery. The insurer heard nothing further from the applicant until December 21, 2012, when he retained counsel and started treatment at East Sheppard Physiotherapy. Within months he was racking up accounts for treatment and for assessments. These included accounts for a psychological assessment and treatment with Dr. Jon Mills, and a chronic pain assessment with Dr. Milad. 1. The MIG does apply to the applicant. 2. The applicant is not entitled to further benefits, as the MIG applies. 3. State Farm is entitled to repayment of $ State Farm is entitled to its costs. The arbitrator found the applicant evasive during his testimony, and the documents revealed that he was inconsistent in his reports to the various assessors. He failed to mention his loss of vision to either doctor, even though Dr. Mills' office purported to provide psychological treatment. In light of the numerous discrepancies and omissions, as well as the lack of explanation for the several months' remission, the arbitrator found in favour of the insurer. The applicant was simply not credible. He failed to discharge his onus of establishing that he suffered anything more than a minor injury which could be treated within the MIG limit. 16

17 Date Arruda and Western Assurance Company, FSCO A July 7, 2015 May 5, 2012 Jeffrey Shapiro 1. Chronic pain and the MIG 2. Income replacement benefits 3. Medical benefits and cost of examinations 4. Special award Before the accident, the applicant worked two part-time jobs as a cleaner and office temp. She was on maternity leave at the time of the accident as she gave birth to her daughter just two weeks prior to the collision. She allegedly suffered soft tissue and psychological injuries as a result of the accident. There were only four visits to her family physician since the accident relating to her injuries. She received treatment under the MIG until July Treatment plans were submitted for additional treatment and assessments outside in the MIG in September, October and November A series of IE s were conducted in December 2012 and the insurer determined the applicant s injuries were in the MIG. The insurer also terminated IRB on the basis of these reports. In February 2014, the applicant obtained an orthopaedic report by Dr. West for the purposes of her tort litigation. Dr. West diagnosed her with chronic pain syndrome. The insurer did not respond to this report. The hearing proceeded primarily in writing. The applicant was the only witness to give viva voce evidence. 1. The applicant s injuries did fall within the MIG but they are no longer in the MIG. 2. She is entitled to an IRB up to 104 weeks post-accident at $103.86/week. 3. She is not entitled to the medical benefits and cost of examinations claimed, except for the ambulance fee. 4. The insurer shall pay a special award of $ MIG The applicant s injury presented itself as a common soft tissue injury at first and the arbitrator accepted the IE assessors opinions that her injuries were within the MIG. Her pre-existing back pain, resulting from the epidural she received during childbirth, was insufficient to remove her from the MIG. However, the IE assessors did not state that she had recovered from her injuries. She was diagnosed with chronic pain syndrome by Dr. West. The arbitrator accepted this diagnosis as it went unchallenged by any medical evidence in the hearing. The insurer did not meet its duty to reassess the claim when new information became available. 17

18 IRB The arbitrator preferred the applicant s evidence that she was unable to do the essential tasks of her pre-accident job as a cleaner. The IE Functional Abilities Evaluation graded her as having limited strength yet her job required medium strength according to the Physical Demands Description. The arbitrator awarded IRB up to 104 weeks. After 104 weeks, the arbitrator considered the evidence that the applicant is able to lift, hold and carry her baby. She is independent in her self-care and drives daily. She exercises on an elliptical at the gym for 45 minutes with breaks. It appears that she is capable of at least performing her second pre-accident position as an office temp. Medical Benefits and Cost of Examinations The arbitrator ruled that at the time the treatment plans were submitted (Sep. Nov. 2012), the applicant s injuries were within the MIG so the treatment plans were not reasonable and necessary. An In-Home Assessment was held to be not reasonable and necessary because it sought benefits not available under her policy. Special Award The applicant provided her income tax returns 2.5 months before the hearing in August It took two months until October 2014 for the insurer s accountant to calculate the IRB quantum and for the cheque to be issued. A special award of 10% on the delayed IRB payment was awarded for the two month delay. 18

19 Date Watters and State Farm Mutual Automobile Insurance Company, FSCO A June 26, 2015 September 29, 2011 Richard Feldman 1. Catastrophic impairment and the Glasgow Outcome Scale ("GOS") (SABS section 3(2)(d)(ii)) 2. Attendant care 3. Medical benefits denied after reaching the $50,000 policy limit 4. Special award The applicant sustained, in addition to other injuries, multiple skull fractures with subdural and subarachnoid bleeding as a result of the accident. Since the accident, she has been primarily housebound and relies on her husband and daughter for support. The applicant applied for catastrophic impairment based on section 3(2)(d)(ii) of the SABS, which requires a score of 2 (vegetative) or (severe disability) on the GOS. 1. The applicant has sustained a catastrophic impairment, as she has suffered a severe disability on the GOS. 2. She is entitled to attendant care at: a. $4,988.08/mth from Oct. 5/11 to Mar. 31/12; b. $3,980.77/mth from Apr. 1/12 to Aug. 31/13; c. $1,698.82/mth from Sep. 1/13 to Aug. 31/13; d. $2,315.87/mth from Sep. 1/14 onwards. 3. She is entitled to some of the medical benefits claimed. 4. She is entitled to a special award, the amount to be determined. Catastrophic Impairment In the opinion of the insurer's expert, neurologist Dr. Moddell, a GOS score is only based on objective neurological testing. The applicant s expert, physiatrist Dr. Vaidyanath with expertise in physical medicine and rehabilitation, disagreed and used a multi-factorial approach to arrive at the GOS score. After considering the literature surrounding the history of the GOS, the arbitrator adopted the applicant's expert's approach. The GOS is based on the person's actual functional abilities, taking into consideration all impairments (although typically cognitive, mental, and behavioural impairments tend to dominate over physical impairments). The focus is on the extent to which the person who sustained a brain injury has been able to return to their usual pre-accident activities, with special emphasis on the person's level of independence both inside and outside the home. The GOS is a five point scale: (1) death, (2) persistent vegetative state, (3) severe disability, (4) moderate disability, and (5) good recovery. The difference between a severe and a moderate disability is the level of independence in activities of daily living, mobility inside and outside the home, in organizing, initiating and completing daily activities, in initiating and responding to opportunities for social interaction, and 19

20 in returning to work and participating in their usual pre-accident leisure activities. The arbitrator preferred the evidence and report of the applicant's expert physiatrist. Attendant Care The applicant's husband demonstrated through pay stubs, income tax returns and a letter from his employer that he suffered an economic loss by working fewer hours each month since the accident so he could assist his wife. The arbitrator analyzed the various Form 1 s compared to the viva voce evidence and preferred the applicant's Form 1 s over the insurer's. The total time was reduced to account for the services performed by the daughter who did not sustain an economic loss as a student. Medical Benefits Many of these benefits were denied by the insurer on the basis that the $50,000 policy limit was exhausted. Very little evidence or argument was presented on any of these issues. The arbitrator analyzed each issue individually to determine if it was reasonable and necessary at the time it was submitted and denied. Special Award The insurer approved attendant care based on their reports but withheld payment pending evidence of an economic loss sustained by the service provider. By April 2014, they had all the information and documentation pertaining to the service provider's economic loss yet they still did not pay. The insurer also denied all medical benefits after July 2012 on the grounds that the $50,000 policy limit was exhausted. When it later learned that there was actually approximately $6,500 still available for medical benefits, the insurer did not reconsider treatment plans. 20

21 Sanmugarajah v. Nordic Insurance Company, FSCO A and A June 9, 2015 November 9, 2006 and February 2, 2007 Dana M. Hirsh Do the parties have an obligation to produce experts for cross-examination on their reports? Applicant, represented by David Wilson, argued that the insurer failed to comply with Rule 41 by failing to provide the other party with the names of witnesses that the party intends to call for cross-examination at least 30 days before the hearing. Furthermore, given the consumer protection nature of the governing legislation, the financial burden of ensuring an expert s attendance should fall on the insurer. The insurer argued that it advised applicant s counsel that it intended to cross-examine all expert witnesses on their reports. Furthermore, a party who intends to rely on a medical report in support of his/her case bears the onus of producing the author of that report to be cross-examined. The parties have an obligation to produce experts for cross-examination on their respective reports. Rule 41 provides that every party must notify a potential witness of the intention to call him/her to give evidence at the hearing at least 30 days before the first day of the hearing. Although dealing with section 52 of the Evidence Act, the reasoning of Justice Shaw in Andreason v. Thunder Bay (City), [2013] O.J. No. 425 was adopted: Once a party tenders the report as evidence, the author of the report becomes the witness of that party. The opposite party then has the right to require the party tendering the report to produce the author of the report at trial for cross-examination. 21

22 Brentnell v. Wawanesa Insurance Company, FSCO A June 30, 2015 October 9, 2010 Marcel D. Mongeon 1. Is the applicant s OCF-1 outside of the time limits? 2. Is the applicant entitled to IRBs, medical benefits, or special award? The applicant was involved in an accident in Ontario but returned to his job as a truck driver the following week and continued working until he was laid off on December 3, He returned to his home in New Brunswick, applied for EI, and called his insurer and advised that he sustained whiplash as a result of the accident, had private coverage, and did not believe he would have any expenses to submit. The adjuster noted the discussion but did not send the applicant information about his entitlement to accident benefits. The applicant found part-time work in New Brunswick in In 2012, the applicant contacted his insurer again at which point information was provided to him and he elected the Ontario SABS regime. The OCF-1 was received on April 5, The OCF-1 was filed in a timely manner. 2. The applicant is not entitled to IRBs, medical benefits, or special award. In his initial call within 7 days of the accident, the applicant advised his insurer that he had a whiplash diagnosis. It was up to the insurer to then provide him with the accident benefits Forms. The medical records state that the applicant s first post-accident visit was on January 17, 2011 where he noted having Headaches stable and neck pain OK now and balance. The applicant s family doctor then sent the applicant to specialists to be examined for post-concussion syndrome, which under cross-examination, was revealed to be a ploy to re-advance a 2003 WSIB claim. The arbitrator relied on the insurer s expert, Dr. Moddel that the applicant did not suffer any neurological deficit. The applicant bears the onus to prove entitlement to benefits. There was no evidence that the applicant was incapable of driving a truck at any time in the 104 weeks following the accident. 22