BROWN & PARTNERS LLP SABS SUMMARIES APRIL 2017

Transcription

1 BROWN & PARTNERS LLP SABS SUMMARIES APRIL 2017 Case Name State Farm and Asamoah, 2017 FSCO 5189 Date March 21, 2017 Date of Loss August 25, 2010 Arbitrator Delegate Jeffrey Rogers Court Issue FSCO Both parties appeal the Arbitrator s decision of August 2, State Farm seeks reversal of the Arbitrator s decision to award Mr. Asamoah IRB s, MR, AC, HK and the COE. Mr. Asamoah seeks to rescind the Arbitrator s dismissal of his claim for a special award and the Arbitrator s limiting of the period of his entitlement to IRB s and AC. Delegate Jeffrey Rogers concluded that the Arbitrator s order must be rescinded, and the matter remitted for re-hearing by a different Arbitrator. The Arbitrator awarded payment for AC and HK for a limited period. However, the order included payment of AC for a period that was more than two years after the accident. Section 18 of the Schedule permits recovery of ACBs for expenses incurred more than 2 years after the accident only where the insured person sustained a catastrophic impairment. Mr. Asamoah did not sustain a catastrophic impairment as a result of the accident. The Arbitrator ordered payment of everything Mr. Asamoah claimed for MR and for COE. The award included payment of $3,500 for an orthopaedic assessment which, according to the Arbitrator, was dated July 17, 2010, more than a month before the accident. The amount awarded also exceeds the $2,000 limit established by s.25 of the new SABS. The Arbitrator ordered State Farm to pay Mr. Asamoah IRBs at the rate of $400 per week, from November 24, 2011 to November 24, The initial 104 weeks of disability ended on August 24, Therefore, the Arbitrator s order included payment during a period of three months in which the more stringent test for entitlement to IRBs was to be applied. The Arbitrator found that State Farm acted unreasonably in failing to reinstate AC and HK prior to Mr. Asamoah s surgery. The Arbitrator did not explain why delay in payment of HK and AC was unreasonable, while delay in payment of IRBs was not. The Arbitrator then went on to rule that Mr. Asamoah was not entitled to a special award. The Arbitrator s order was stayed as it related to payment for COE, AC, HK and MR because the Arbitrator gave no reasons for making those awards. Failure to give reasons is a breach of natural justice that mandates setting aside the decision. There was no evidence supporting the Arbitrator s decision to limit entitlement of IRBs to 3 months the issue of Mr. Asamoah s further entitlement was therefore remitted for re-hearing. The issue of entitlement to a special award was remitted for re-hearing as the Arbitrator s reasons contained contradictions.

2 Case Name Hashi and Certas, FSCO 5198 Date March 27, 2017 Date of Loss November 28, 2012 Arbitrator Harvey Savage Court FSCO Issue 1. Is Mr. Hashi entitled to receive a weekly IRB at the rate of $ per week from December 5, 2012 to July 1, 2014? 2. Is Mr. Hashi entitled to certain Medical Benefits claimed? 3. Is Certas liable to pay a Special Award because it unreasonably withheld or delayed payments to Mr. Hashi? 1. Mr. Hashi is not entitled to receive a weekly IRB. 2. Mr. Hashi is entitled to Medical Benefits 3. Mr. Hashi s claim for a Special Award is dismissed. The Applicant s car was rear-ended on November 8, 2012 when he was stopped at a red light. The Applicant stated he went see a physiotherapist and commenced physiotherapy a short time following the MVA. In January 2013, the Applicant received a phone call from Somalia that his siblings were injured as a result of a MVA. He therefore left for Somalia on February 13, 2013 and returned to Toronto in April The Applicant was allegedly employed as an oil worker in Fort McMurray at the time of the accident. 1. The disparity between his testimony and the evidence surrounding the EI Application and Record of Employment, as well as what he told the officer interviewing him, called into question whether he was employed at the time of the MVA. Arbitrator Savage was not satisfied that he discharged his onus, and proved that he was employed at the time of the accident. 2. Arbitrator Savage favoured the applicants witnesses, and did not accept that the Applicant was malingering or that he was feigning his symptoms. The arbitrator found Applicant s injuries took him out of the MIG and that the treatments recommended in the treatment plans were reasonable and necessary. 3. The evidence in this case did not give rise to the level of finding that a Special Award is an appropriate remedy. However, Arbitrator Savage did note that the adjuster for the Insurer made errors in adjusting the file. The adjuster ignored timely notifications from the Applicant s legal representative that the Applicant was away from Canada for two months in 2013 because of a family emergency. Nonetheless, the adjuster scheduled s. 44 examinations during that period, and suspending benefits despite receiving tangible evidence of the Applicant s whereabouts. 2

3 Case Name Pellegrino and S.N., FSCO 5193 Date March 20, 2017 Date of Loss August 28, 2015 Arbitrator M.J. Winer, Q.C. Issue(s) Should CPP payments by an employer be added in calculating gross employment income under the SABs? - Williams and Partners Accountants found weekly IRB to be whereas ADS Forensic Accounting found the weekly benefit to be $ (submitted by the applicant). No, CPP payments made by an employer are not to be considered part of gross employment income. - based on the interpretation of what constitutes gross employment income as defined in s.4.(1) of the SABS. - Old SABS, as interpreted in Howden and Pafco Insurance Company Limited, 2001, denied the inclusion of employer paid CPP benefits as part of gross income from employment. The accountants for the applicant, while aware of this decision, stated to include CPP contributions because the old SABS calculated IRBs on after tax income whereas new SABS calculates on pre-tax income making the old decision no longer applicable. - The employer s premiums are not paid to nor received by the employee and as such do not fit the definition. - Though it may be collectively considered part of a compensation package, employer CPP contributions are not part of income based on the intention/understanding of what the SABS considers to be income when calculating IRB payments. 3

4 Case Name Phillip and State Farm, FSCO 5195 Date March 24, 2017 Date of Loss November 27, 2009 Arbitrator David Snider Issue(s) - When is it appropriate to dismiss an application for arbitration as a result of inactivity on a file? - Applicant (likely) died August 14, No death certificate filed. - Applicant lawyer removed from record on November 7, Notice of Intent to Dismiss delivered on November 7, Arbitrator allowed applicant/applicant representative 40 days (rather than required 20 days) to voice objection to the intended dismissals - Both Applications for arbitration are dismissed. - Failure to respond to notice of intent of dismissal and failure to show any activity on the file since August 15, 2015 was sufficient to dismiss both applications. 4

5 Case Name Intact Insurance Company and Malaya Roberts, FSCO P Date March 15, 2017 Date of Loss August 13, 2011 Arbitrator Issue(s) David Evans, Director s Delegate Was the Applicant involved in an accident and therefore entitled to claim accident benefits? The Applicant and her friends parked a pick-up truck at the edge of a lake, lowered the tailgate and used the tailgate as a platform from which they could jump into the lake. During this time the Applicant was injured and was found floating face-down in the lake before being rescued by one of her friends. The Arbitrator found that on the balance of probabilities that the Applicant was injured while jumping from the pick-up truck into the lake. Her spinal cord was severed and the Applicant now resides in a long-term care facility. The Arbitrator found that the Applicant was covered by Intact at the time of the accident as an occupant of the vehicle. The Applicant was not in an accident and is not entitled to claim accident benefits. The Arbitrator failed to follow binding case law establishing that treating a truck as a diving platform is an aberrant purpose and not one covered by automobile insurance. Getting out of the bed of a pickup truck would almost always attract insurance coverage, except in the very specific context of performing cannonballs from it. This was a private vehicle, and there was no evidence that the Ford Motor Company ever advertised its use as a diving platform. 5

6 Case Name Edwards and Optimum, FSCO Appeal P Date March 13, 2017 Date of Loss March 12, 2013 Arbitrator Issue(s) Director s Delegate Rogers Does interest run from the date the applicant rescinded the settlement or from some earlier date? The applicant settled his accident benefits claim on a full and final basis in October On the authority of the Aviva and Parveen 1 decision, he repaid the settlement funds and rescinded the settlement. In addition to his existing claims for caregiving benefits and housekeeping, the applicant added claims for attendant care, nonearner, 2 medical benefits, and special award. Optimum conceded entitled to all the benefits and paid interest starting from when the applicant rescinded the settlement. Arbitration was held over interest before the rescinded settlement and special award. Arbitrator Musson denied the applicant s claim for further interest and special award. The applicant appealed. The appeal is allowed. The applicant is entitled to further interest on CG, HK and NEB, but not AC and medical benefits. Entitlement to interest does not depend on establishing entitlement to the benefit. Insurers are required to pay interest when a benefit becomes overdue. Jurisprudence has established limited exceptions to this rule, none of which apply to this case. There are two cases 3 which specifically address an insured person s entitlement to interest after rescinding a settlement. They both hold that interest accrues from the date benefits become overdue, not from the date of rescission. The arbitrator distinguished these cases and applied common sense instead. This was an error of law. CG, HK and NEB are weekly benefits, payable within the 10 day period set out in section 35. Therefore, the applicant is entitled to interest on the date payment became overdue. The applicant applied for AC and medical benefits after rescinding the settlement, so he not entitled to further interest. 1 Aviva and Parveen, FSCO P , held that the Settlement Disclosure Notice in the same form that the applicant had executed in 2005 was defective because it did not provide the information regarding rescission. 2 He became entitled to non-earner when his daughter turned 16 years old. 3 Mascitti v. Gore Mutual Insurance Company, [2005] O.J. No and Black v. Dominion of Canada General Insurance Company, 2007 ONCA

7 Case Name DeCaires and Royal & Sunalliance, FSCO 5176 Date March 13, 2017 Date of Loss March 20, 2014 Arbitrator Kimberly Parish Issue(s) Is the applicant s Application for Arbitration deemed withdrawn under Rule 70 of the DRPC? RSA scheduled a s. 44 examination, to determine if the applicant s impairments fall within the MIG, and to assess a treatment plan at issue. The applicant did not attend the s. 44 examination because of a scheduling conflict. She offered to attend the examination at a different time, but RSA refused to reschedule it. The applicant commenced the proceeding. At the mediation, RSA took the position that the applicant was precluded from proceeding with the mediation, given her failure to attend the s. 44 examination. The applicant then submitted her Application for Arbitration. At the pre-hearing, the applicant sought to withdraw the application without prejudice to her right to raise the same issues before the LAT. RSA opposed the withdrawal, arguing that any withdrawal should be on a with prejudice basis, so that the applicant could not institute proceedings for the same relief at a later date. The applicant was permitted to withdraw her application for arbitration, on a without prejudice and without costs basis. Arbitrator Parish found no basis upon which to refuse the applicant s request to withdraw her application for arbitration. She did not address RSA s request that it be done with prejudice, to preclude the applicant from seeking the same relief before the LAT once she participated in the s. 44 examination. Arbitrator Parish did not award costs because RSA forced the matter on to a preliminary issues hearing. 7

8 Case Name Hodgins and Co-Operators, FSCO 5178 Date March 13, 2017 Date of Loss October 10, 2008 Arbitrator Issue(s) Jeff Musson 1. Is Ms. Hodgins statue-barred from applying for Income Replacement Benefits ( IRBs ) as per section 51 of the Schedule? 2. Is either party liable to pay expenses in respect of the Preliminary Issue Hearing? The Applicant received IRBs up until her termination date of June 2, The Insurer terminated the Applicant s IRBs based on an occupational therapy assessment and a physiatry assessment. The Applicant subsequently filed for Mediation on February 23, 2016 and subsequently applied for Arbitration on March 15, Ms. Milne, the claims representative, confirmed in her testimony that upon termination, she sent the Applicant an OCF-9 explaining the changes to the Applicant s entitlement to benefits. She sent the Applicant the Insurer s Examination reports, the explanation of benefits, the after denial of benefits information sheet, and the Applicant s final cheque for the IRBs owing from June 1-5, The Applicant was employed full time at Inco Mines as an assistant mining engineering technician. She was off of work on short term disability ( STD ) in order to deal with her depression starting on August 8, At the time of the MVA, the Applicant was still on STD having not returned to work yet. It was only after her STD ceased that she would be entitled to any IRBs. The Applicant was then granted long term disability ( LTD ) after her STD terminated. However, there was a small shortfall which was covered by IRBs for the period of February 14, 2009 to May 31, 2009 in the amount of $ The Applicant also testified that she didn t bother to read the section of her OCF-9 as to the steps required if she disputed the IRB termination. She never notified the Insurer that she was not in agreement with her termination of benefits and she also confirmed that she did not file an Application for Mediation in order to dispute the termination. 1. Ms. Hodgins is statue-barred from applying for IRBs as per section 51 of the Schedule. 2. Co-operators is entitled to its expenses in respect of the Preliminary Issue Hearing. The Supreme Court of Canada in Smith v. Co-operators sets out the factors required for Insurers to be able to rely on the limitation period. Insurers have to provide a valid refusal of benefits; this refusal must state a clear and unequivocal denial; and it must give reasons for the denial, 8

9 including accompanying medical documentation if applicable, and provide a description of the dispute resolution process. The Applicant received proper notice and the legislation is unequivocal about the time limits to file a dispute. There were also no extenuating circumstances preventing the Applicant from disputing her termination of benefits. The Applicant had ample opportunity to dispute her case within the confines laid out in the legislation, and her lack of action rests solely with her. The denials sent by the Insurer were clear and unequivocal in addition to the Applicant testifying she received them. Although Ms. Milne was a claims representative and not a claims adjustor, that was not a sufficient ground to suggest the OCF-9 was not properly explained to the Applicant. The evidence and the testimony of the Applicant confirmed that she willingly chose not to dispute the termination of her benefits until it was past the two-year limitation period. 9

10 Case Name Western and Clarke-Hunter, FSCO 5196 Date March 27, 2017 Date of Loss September 30, 1998 Arbitrator Issue(s) Jeffrey Rogers Are the issues raised in arbitration duplicate claims made in an action in the Superior Court regarding the same accident? The arbitration arises from a motor vehicle accident on September 30, Ms. Clarke-Hunter, then nearly three years old, was struck by a car driven by Alan Keith Richardson and owned by W. Emerson Richardson. She suffered serious injuries from which she has now substantially recovered. Ms. Clarke-Hunter s lawyer at the time submitted an Application for Accident Benefits dated October 13, 1998, but did not pursue a claim for benefits. There is a priority dispute between Royal & SunAlliance Insurance Company of Canada (RSA), which owns the Respondent Western, Dominion of Canada General Insurance Company (Dominion), and the Motor Vehicle Accident Claims Fund (MVAC Fund). The priority dispute was not resolved at the time of the hearing before the Arbitrator. On August 31, 2000, Ms. Clarke-Hunter commenced an action in the Superior Court on behalf of herself and her mother and served a Statement of Claim on the named defendant, Alan Keith Richardson. The claim was amended on June 13, 2012 to add claims including a declaration that one of the two insurance companies is obligated to pay statutory accident benefits. The action has not reached discovery, with trial not likely to take place before In August 2014, Ms. Clarke-Hunter submitted to RSA the four treatment plans which are in issue in the arbitration. She claimed: $ for speech language pathology services; $ for social work sessions; $ occupational therapy; and $ for a MacBook Pro computer and software already incurred. RSA denied these four treatment plans on September 11, Ms. Clarke-Hunter applied for mediation which failed to resolve the dispute, and then she applied for arbitration The issues in court are not duplicated in the arbitration. That determination means that the status and scope of the court action are not relevant. Also, whether or not the issues in arbitration can be moved into court becomes a minor concern, because it is the insured person who has a choice of forum, and not the insurer. 10

11 The factors in Wasiela and Wawanesa Mutual Insurance Company (FSCO A , April 16, 2015) were applied. The issues were not substantially similar and with regard to accident benefits, the court action requests declaratory relief only with no claim for specific accident benefits. The Arbitrator also noted that the arbitration could be resolved long before the civil action. Although it was agreed that the court action is broader in scope than the arbitration, the Arbitrator found that to be irrelevant because, although broad, the court action does not include the issues in arbitration. The Arbitrator ruled that the fact that the issues in the Arbitration can be transferred to the civil action does not mean that they should be transferred. Furthermore, the priority issue and the question of entitlement to specific accident benefits are not substantially similar. There would be no overlap in evidence. 11

12 Case Name Falcon v. State Farm FSCO 5163 Date February 16, 2017 Date of Loss May 11, 2008 Arbitrator David Evans Issue(s) Did Arbitrator Morris err in finding there was no refusal? State Farm paid income replacement benefits until May 18, Following insurer examinations, it terminated IRBs in two Explanations of Benefits, both dated April 17, The first was accompanied by a letter explaining the rebuttal examination process, and the second referred to the first while expanding upon the reasons for termination. After reviewing a rebuttal examination, State Farm sent a third OCF-9, reiterating its position and referring back to the previous Explanation of Benefits (OCF-9) dated April 17, 2009 wherein the benefit was denied or deemed not payable. A Report of Mediator was issued June 27, Falcon commenced arbitration in December Arbitrator Morris found the second OCF-9 did not constitute a clear refusal of benefits as it referred to the possibility of a rebuttal examination report, repeated in the accompanying letter. The Arbitrator also found that the emphasis on the rebuttal process would suggest to an unsophisticated person that the refusal was not complete until the Insurer considered the rebuttal assessment. It was not reasonable to expect an insured person to piece together different OCF-9s of different dates to arrive at a valid refusal. State Farm appealed. State Farm s refusals were proper. The claim is statute barred. The OCF-9s were not confusing; they were were tightly linked so the insured did not have to piece together the information from scattered documents. The Arbitrator erred in paying too little attention to Part 6 of the OCF-9; while she had summarized it, she did not give it the effect it deserved. There is no support for the proposition that a refusal is invalidated simply because it gives more information than might be necessary. The first OCF-9 met the requirements in Smith. 12

13 Case Name Raffa v. The Personal, FSCO 5169 Date February 21, 2017 Date of Loss June 12, 2012 Arbitrator Louise Barrington Issue(s) Is the Applicant s claim for non-earner benefits statute-barred? Applicant filed for benefits and submitted an OCF-3 in July 2012 and in the disability section noted she did not suffer from a complete disability. The Insurer sent an OCF-9 which had checked off Box B -- not eligible / stoppage of benefit, adding, Non-Earner Benefit. You may be eligible for a Non-Earner benefit. To qualify, you must suffer a complete inability to carry on a normal life 26 weeks after the onset of disability. Please submit medical documentation at that time. A second OCF-9 was sent on July 19, 2012 and advised that she did not suffer from a complete inability to carry on a normal life and did not meet the test of disability. A third OCF-9 of November 23, 2012 stated To determine if you are eligible for Non-Earner Benefits, we require a completed Disability Certificate (OCF-3) in accordance with Section 36 of the SABS. The Applicant submitted a new OCF-3 which prompted a fourth OCF-9 on January 26, 2013 which confirmed she did not suffer a complete inability. The claim is not statute-barred and may proceed. The initial OCF-9 forms, with no comment or explanation, were sufficient to create at least some doubt in the mind of a reasonable person. Following established case law, this doubt alone would not be sufficient to be reasonable, so as to defeat the running of the limitation statute. However, the addition of the spontaneous reminder in November 2012, in combination with those two inconsistent and unexplained forms, followed by the fourth OCF-9 on January 26, 2013, further muddied the waters. Considered together, the premature denials within the 26 week period, the contradictory OCF-9 forms, and the spontaneous request for new information four months later, form a constellation of which the cumulative effect was to create reasonable doubt. The second OCF-9, taken in this context, cannot be said to be unequivocal or clear. 13

14 Case Name Nguyen and T.D. (Appeal P ) Date February 9, 2017 Date of Loss January 14, 2003 Arbitrator Director s Delegate Evans Issue(s) Did the Arbitrator err in failing to find the Applicant CAT, and denying his entitlement to IRBs, housekeeping, attendant care and a special award? The Applicant argued that his near-catatonic state at arbitration established that he was catastrophically impaired by the accident. During the hearing, the Applicant presented as having limited cognitive abilities and awareness. His wife and daughter testified, but their testimony was fraught with inconsistencies and not credible. Surveillance from 2004, 2005, 2008 and 2011 revealed the Applicant driving, using pay phone for what appeared to be long distance calls, servicing his car, speaking with others, attending a restaurant, carrying trays of coffee, attending garages where he interacted with mechanics and participated in vehicle maintenance. He displayed no signs of physical or mental impairment, and demonstrated the ability to engage in social functioning, complete everyday tasks, engage in complex goal directed behaviour. The appeal was dismissed. The Director s Delegate rejected the appeal. The Applicant s grounds for appeal were all based on the Arbitrator s findings of fact, which are not appealable. The Arbitrator was entitled to rely on the surveillance, reject the wife and daughter s testimony, and accept the medical evidence and surveillance offered by the Insurer. This case highlights the value of surveillance in CAT disputes. 14

15 Case Name W.A. and Unica, FSCO A Date February 13, 2017 Date of Loss September 1, 2011 Arbitrator Janette Mills Issue(s) Is the Applicant catastrophically impaired, and is he entitled to medical benefits, attendant care, and a special award? The Applicant was ten years old, when he was struck by a car as a pedestrian. He was bleeding from the head, and a friend helped him home. At hospital, he was diagnosed with a mild traumatic brain injury (concussion), and discharged within a few hours. His pre-accident school records showed that he received ESL training, inschool support and accommodations. He tested below the Provincial standards in English and math. His teachers described him as quiet, and lacking in confidence. The Applicant is not catastrophically impaired, but is entitled to one treatment plan, and attendant care until March 31, The Arbitrator accepted that the Applicant suffers social anxiety disorder, learning disorder and PTSD in partial remission as a result of the accident. She preferred the evidence of the Applicant s treating practitioners, despite the fact that their relationship with the Applicant may colour their testimony, because they had more opportunity to observe and interact with him. The Arbitrator accepted that the accident resulted in a mental or behavioural disorder the impacted on his social functioning and/or adaptation. She accepted the Applicant s testimony that he continues to feel scared, overwhelmed and has nightmares. She noted the inconsistencies in his mother and sister s evidence, but was not prepared to discount the Applicant s testimony because of them. The Arbitrator found that the Applicant failed to establish a marked impairment in any domain. Regarding social function and also adaptation, she found a mild impairment as he was able to make friends, try out for the cricket team, and perform at class average levels in his post-accident studies. There was no significant difference in his pre- and post-accident life from a social perspective. The Applicant failed to establish catastrophic impairment. Two treatment plans were at issue, for rehabilitation. The Arbitrator agreed with the Insurer s submission that the first was a duplication of another treatment plan which had been approved. Accordingly, it was not reasonable and necessary. The Insurer partially approved the second treatment plan, and failed to provide reasons for denying the balance. Accordingly, the Arbitrator found in favour of the Applicant on this issue. The attendant care at issue included routine, supervisory and complex care. The Arbitrator agreed that much of the care at issue was the type of care that any child requires, and is not accident-related. However, the Applicant s mother left her job to care for him in the immediate post- 15

16 accident period. During that time, he did require additional care. Accordingly, she awarded attendant care until the Applicant returned to school. The Applicant is not entitled to a special award. There was no evidence that the Insurer unreasonably delayed or withheld benefits, as it was entitled to rely on the assessments. 16

17 Case Name Fallahi and Aviva, FSCO A Date February 14, 2017 Date of Loss August 1, 2008 Arbitrator Edward Lee Issue(s) Is the Applicant catastrophically impaired? Mental or Behavioural Disorder: Dr. Becker (for the Applicant) and Dr. Gnam (for the Insurer) agreed that the Applicant suffers a major depressive disorder, anxiety disorder and pain disorder. They agreed that he did not suffer a marked impairment in any domain, apart from Dr. Becker s opinion that at times he suffered a marked impairment in adaptation. Whole Person Impairment: Both parties agree the applicant suffered physical and mental impairments. They disagreed on the rating. The Applicant is not catastrophically impaired. He did not suffer a marked or extreme impairment due to mental or behavioural disorder, or a 55% whole person impairment. Mental or Behavioural Disorder: Dr. Gnam s opinion was preferred. Dr. Becker s report contained factual errors, including errors about the Applicant s work history, his personal relationships, and although she agreed that a functional assessment are a valuable aid in conducting mental and behavioural assessments, she did not have one available. Dr. Becker relied on the Applicant s own statements, and he is a poor historian. She did not provide any examples of how his functional abilities changed, and her evidence that he suffered a marked impairment at times was insufficient to establish that he suffered the marked impairment more often than not (as required under Cumberbatch). Whole Person Impairment: Both parties agreed the Applicant suffered a 5% impairment for both cervical and lumbar spine. The Applicant has a 7 cm x 9 cm scar on his left ankle. He did not testify that the scar caused functional difficulties, was uncomfortable/painful, or embarrassed him. Dr. Oshidari s assessment of a 0% rating was accepted. The parties assessors disagreed about the appropriate method of assessing the Applicant s lower extremity impairment. On behalf of the Applicant, Dr. Sangha used the Diagnosis Related Evaluation, whereas Dr. Oshidari used Range of Motion. The Arbitrator accepted the Insurer s position, that Range of Motion is the appropriate test, because the ankle was no longer displaced, and the post-surgical status is the relevant state. The rating was 6%. The Arbitrator agreed with Dr. Gnam that impairments caused by medication should be rated under the appropriate part of the Guide to avoid double counting. He rejected the Applicant s rating of 3% for medication because of lack of concentration and fatigue (which are included under the psychological examination), finding a 1% impairment for medication because the Applicant developed Chronic Regional Pain Syndrome. On the issue of mental and behavioural disorders, both sides agreed that the California Method is appropriate. The Applicant s GAF fluctuated over time, and taking the period into account, Dr. Becker s 17

18 assessment was flawed (it was lower than any other GAF). Based on Dr. Gnam s opinion, the WPI is 15-18%. Totalling the WPI results in 31%. 18

19 BROWN & PARTNERS LLP SABS SUMMARIES APRIL 2017 Case Name Comegna and Aviva, FSCO 5168 Date February 21, 2017 Date of Loss February 13, 2014 Arbitrator Issue(s) Charles Matheson 1. Is Ms. Comegna entitled to receive a non-earner benefit of $ per week, commencing August 13, 2014 up to December 15, 2014? 2. Is Ms. Comegna s impairment(s) properly characterized by Aviva as predominantly minor in nature and subject to the Minor Injury Guideline ( MIG )? 3. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Comegna? 4. Is Ms. Comegna entitled to interest for the overdue payment of benefits? 5. Is Aviva liable to pay Ms. Comegna s expenses in respect of the Arbitration? 6. Is Ms. Comegna liable to pay Aviva s expenses in respect of the Arbitration? The Applicant, Ms. Colleen Comegna, was injured in a motor vehicle accident on February 13, She applied for and received statutory accident benefits from Aviva Canada Inc. ( Aviva ), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Colleen Comegna applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended. The Applicant and Aviva reached a settlement of this Arbitration on December 21, The Applicant then attempted to rescind the settlement leading to the preliminary issues. 1. The Applicant has no entitlement to a non-earner benefit and is precluded from arbitrating the non-earner benefit. 2. There is no compelling evidence that the Applicant s injuries or impairments are linked to the car accident. Therefore, on a balance of probabilities, the Applicant s injuries fall within the MIG at this time. 3. There are no delayed payments of benefits or interest on same, therefore a special award is not applicable. 4. There are no overdue or delayed payments of benefits for which interest could be assessed. Therefore, no interest is to be awarded. 5. The Insurer is owed its reasonable expenses of this Arbitration from the Applicant. In her testimony, the Applicant complained of being in constant pain, but was not specific to which area of her body the pain radiated from, or the activities in which the pain prevented her from participating. The Applicant also complained of having several seizures. The first documented seizure was on August 18, 2014 and a second documented seizure was on November 29, There was no evidence provided that there is a clear link between the car accident and the seizures via any

20 medical opinions or reports. The Grand River Hospital s medical team also concluded that these two seizures were related to alcohol withdrawal. The family doctor s records evidence that the Applicant has been struggling with alcohol for some time. The Applicant s undisputed evidence is that she lost her licence because of the seizures and not because of alcoholism. Therefore alcoholism cannot be considered as a pre-existing condition to be relied upon by the Applicant in order to be removed from the MIG at this time. Three other doctor s reports, besides her family doctors, outline the same opinions that the Applicant has suffered a minor injury. There is further evidence to support that the Applicant s injuries fall within the MIG because on October 29, 2016 Derek Adam, an Occupational Therapist, assessed the Applicant and then on November 5, 2016, Dr. Oshidari examined the Applicant. Both assessors came up with the same results as the previous assessors. On a balance of probabilities, the arbitrator found that the Applicant s injuries fall within the MIG at this time. As such, there were no overdue or delayed payments for which interest could be assessed and the Insurer is not liable to pay a special award. 20