BROWN & PARTNERS LLP SABS SUMMARIES December 2016

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1 Case Name Agypong and Jevco Insurance Co., P Decision Date December 12, 216 Date of Loss July 12, 2005 Arbitrator Jeffrey Rogers, Director s Delegate, for the appeal; Arbitrator John Wilson for decision Issue(s) The three issues on appeal are: 1. Did the Arbitrator err in failing to award benefits until the time Jevco denied them because of Jevco s breach of its statutory duty? 2. Did the Arbitrator err in failing to accept hospital records as prima facie evidence of the cause of The Applicant s impairments? Facts Decision 3. Did the Arbitrator err in failing to apply the proper causation test or misapplying the causation test? The Applicant was struck by a pick-up truck on July 12, 2005, the subject MVA. One week prior to the subject MVA he was also struck by a car while riding his bicycle. He also had several other incidents prior to the subject MVA giving him pre-existing medical conditions. The Applicant is appealing the Arbitrator s decision of January 25, 2016, which denied his non-earner and housekeeping and home maintenance benefits. Appeal Dismissed. 1. The Arbitrator properly concluded that The Applicant was required to prove entitlement to the benefits he claimed and properly concluded that he failed to do so. 2. The Arbitrator was not required to treat hospital records as evidence of causation. Reasons 3. The Arbitrator properly applied the causation test. 1. There is no presumption of entitlement: We deal with a case, not of termination of benefits, but one in which benefits were never paid for want of proof of entitlement. The Applicant was not a credible witness. He was not truthful about when he applied for accident benefits. The Arbitrator is not required to infer timely delivery from the date of the OCF-1. There was ample evidence for the Arbitrator to support the factual findings of when The Applicant actually applied. State Farm and Yogesvaran 1 says that the Applicant is still required to prove his entitlement, under the circumstances. So even if Jevco breached its obligations under the SABS, The Applicant still had to prove his entitlement. 1 FSCO P , October 28,

2 2. Hospital Records: Ares v. Venner 2 explains that hospital records are not hearsay as they are made contemporaneously by someone having personal knowledge of the matters then being recorded and under a duty to make the entry or record. They do NOT constitute proof of the injury alleged. 3. Causation: The Arbitrator did not err in applying both the but for test and the material contribution test because he found that The Applicant met neither test. Specifically, the Arbitrator did apply the correct test and concluded that the subject MVA was neither significant nor influential in creating the disability reported post-accident. In other words, the Arbitrator applied the de minimis analysis from Athey v. Leonati 3 and found the subject MVA did not contribute beyond the de minimis range to The Applicant s alleged disability. The mere existence of complaints after an accident is not in itself sufficient to attribute causation. 2 [2002] S.C.R. No [1996] 3 SCR 458 2

3 Case Name Mohammad and Allstate Insurance, FSCO A Decision Date December 19, 2016 Date of Loss November 20, 2010 Arbitrator Issue(s) Alan G. Smith What is the correct causation test for accident benefits? Is the applicant catastrophically impaired? Is she entitled to non-earner benefits, housekeeping benefits, attendant care benefits and the cost of examinations? Facts The applicant was a passenger in a vehicle that was travelling through a parking lot when another vehicle reversed from a parking space into her vehicle. She was involved in a prior motor vehicle accident on March 30, 2009, which caused injury to her neck, lower back and shoulder, as well as headaches. She was diagnosed with rheumatoid arthritis in the 1990s and approved for CPP disability benefits in She had two surgeries (fusion of neck vertebrae) because of her rheumatoid arthritis in July 2009 and November As a result of the subject accident, she injured her back, knees, and ankles, as well as depression. Her pre-existing condition was aggravated. She alleged that she was improving in function prior to the subject accident, but her condition was made worse by the subject accident. The applicant s CAT neuropsychologist Dr. Douglas Salmon found a marked impairment in all four domains and opined that she suffered a 70% whole person impairment. The insurer s CAT psychiatrist Dr. Joel Eisen opined that she had no or mild impairments in the four domains. He found no diagnosable psychiatric disorder. Decision Reasons The correct causation test for accident benefits is material contribution rather than but for. The claims for NEB, HK and AC are dismissed. She is entitled to the cost of examinations. Catastrophic Impairment and Causation: Arbitrator Smith followed the holistic approach in Ghabn v. Dominion Insurance and concluded that the applicant suffered a catastrophic impairment. The issue was whether it was caused by the accident. Until recently, the causation test applied in accident benefits claims has been material contribution, based on the Supreme Court of Canada s reasoning in Athey v. Leonati and adopted by the Ontario Court of Appeal in Monks v. ING. The insurer argued that the test is changing with recent cases, including the Ontario Court of Appeal s decision in Blake v. Dominion and Arbitrator Wilson s decision in Agyapong and Jevco. In Blake, the Court refused to conclude that the trial judge erred by failing to apply the material contribution test because the plaintiff raised the 3

4 issue for the first time on appeal. The insurer argued that in Blake the Court of Appeal decided that all SABS disputes must be determined on the but for test. Arbitrator Smith disagreed. If the Court of Appeal intended to overturn its earlier decision in Monks v. ING, it would have done so clearly. Arbitrator Smith concluded that the evidence here leads to the conclusion that the accident was a materially contributing factor. Non-earner benefits: There was almost no evidence lead at the hearing regarding NEB. The applicant s perceptions are not of sufficient evidential weight to meet her onus of proof. Housekeeping and Attendant Care: Both of these issues turned on whether the service providers met the definition of incurred. The applicant s daughter, who lived with the applicant, testified that she gave up her full time job to provide services to her mother. Later when she moved away post-accident, she incurred gas to drive to the applicant in order to provide services. Even though requested by the insurer, she never provided evidence of her economic loss and the hearing was the first time she particularized it. The insurer s procedural fairness rights were infringed. The second service provider was the applicant s brother, who was an employee of a commercial cleaning service. There was no supporting documentation (eg. receipts). The claims for housekeeping and attendant care were dismissed. Cost of Examinations: After accepting that the applicant was catastrophically impaired, Arbitrator Smith concluded that the incurred attendant care assessment, in-home assessment and spinal assessment were reasonable and necessary. 4

5 Case Name Serafini and Security National, FSCO A Decision Date December 19, 2016 Date of Loss January 14, 2008 Arbitrator Musson Issue(s) 1. Post-104 IRB s. 2. Medical benefits $1, for physiotherapy. 3. Medical benefits $5, for psychological treatment. Facts 4. CAT 45 year old mother of one, who suffered soft tissue injuries after an accident. Emergency personnel were not called to the scene of the accident. The applicant s car sustained $2,500 damage. She drove on to work that morning, and worked the whole day at a school for children who cannot be accommodated in the regular system. After that day, she never returned.. The applicant had 2 prior car accidents (2000 and 2005) and a 2005 workplace accident (assaulted by a student). Arbitrator Musson accepted that the applicant was a credible witness. He accepted that her husband s and family doctor s corroborating evidence as credible. Surveillance did not assist the insurer, because the applicant and her husband testified to her good and bad days. The surveillance only captured her public behaviour, on good days. The surveillance did not capture the applicant performing activities that she said she could not do. Decision The applicant s pain complaints were consistently documented. Her family doctor referred her to specialists. She tried various treatments, including every treatment recommended. She tried to return to work or volunteer work, but could not perform due to pain. 1. The applicant is not entitled to post-104 IRB s. 2. The applicant is entitled to $1, for physiotherapy. 3. The applicant is entitled to $5, for psychological treatment. Reasons 4. The applicant is catastrophically impaired, under Criteria 8 (impairment due to mental or behavioural disorder). 1. The applicant is not entitled to post-104 IRB s because she elected and was paid a CGB. She never filed an OCF-2, or a re-election. She had no reason for her failure to re-elect within 30 days as required by s. 32 (under Abbany and Pafco, the reason for delay can be considered). 2. The applicant s evidence that physiotherapy helped her was accepted. 3. The applicant s evidence that psychological treatment helped her, and 5

6 she would like to attend for more treatment was accepted. 4. Arbitrator Musson accepted the evidence of the applicant s CAT assessor, Dr. Levitt, for the following reasons: Dr. Levitt is very experienced in CAT assessments; has published books and articles on the topic; is not only on the Board of the Canadian Academy of Psychologists in Disability Assessments, but also served 2 years as its President; and most importantly conducts workshops and conferences on CAT impairments. By contrast, Dr. Nashef, the insurer s expert, is retired. Even in practice, he conducted fewer assessments than Dr. Levitt and only maintained close contact with the Canadian Academy of Psychologists in Disability Assessments. The doctors agreed that: the applicant s test scores were valid; her information was consistent; and she suffers from depressive, adjustment and pain disorders. They differed in that Dr. Levitt concluded she suffers a marked impairment in the area of adaptation on the basis that she cannot deal with stress. She tried to return to work and volunteering, but went home emotionally deteriorated, which decreased her functioning and impeded her activity. Dr. Nashef agreed that the applicant had problems, but opined they were not difficulties and she can live with her problems. The other area where the doctors disagreed was the applicant s GAF, with Dr. Levitt coming in at 45, and Dr. Nashef at Explaining his preference for Dr. Levitt s evidence, Arbitrator Musson writes The Applicant s opinion is that the results of Dr. Nashef s report are unreliable as a result of the information that Dr. Nashef obtained from his assessment of the Applicant. Based on the evidence and the testimony at the Hearing, I agree. Arbitrator Musson did not elaborate. 6

7 Case Name Keck and Sovereign General Insurance Company FSCO A and A Decision Date December 19, 2016 Date of Loss April 5, 2011 Arbitrator Issue(s) Irvin H. Sherman 1. Catastrophic Impairment 2. IRBs from May 22, 2012 and ongoing treatment plans, physical and psychological treatments Facts Ms. Keck was a married dump truck driver. She worked for her husband s trucking business hauling construction material and record keeping. She suffered from a learning disability but was able to complete a one-year lab tech course. Ms. Keck was driving when she blacked out as a result of taking an extra blood pressure pill. She drove into the opposite lane of traffic where she collided with another vehicle. She suffered from jaw dislocation, headaches, neck pain, left arm pain and left hip, back and leg pain. She has problems with memory, concentration and sleeping. She suffers depression and anxiety. Ms. Keck was treated for pain for several years before the accident as well as after. Treatment was more extensive after the accident. There was no event identified in the case as the cause of her pre-accident pain. Decision Reasons 1. The claimant suffered a catastrophic impairment, based on a marked impairment in the adaptation domain 2. The claimant is entitled to IRBs from May 22, 2012, with interest 3. The treatment plans are not reasonable or necessary 1. The arbitrator noted that an applicant s functioning must be significantly impeded, not totally. It must be an impairment level that is more than insignificant or more than minimal; it must be at a level that is large enough to be noticed. With respect to causation, 25% contribution towards causation was significant in Athey v. Leonati (SCR 1996). Although she may have had pain issues prior to the accident, they did not impede her ability to work or perform housekeeping duties prior to the accident: Ms. Keck has been unable to drive a dump truck since her accident; she is able to perform some household chores with rests; she remains forgetful; she is unable to concentrate as she did pre-accident; she remains anxious and depressed and has difficulty sleeping; she has jaw pain when eating and does not eat regularly; she has attended hundreds of appointments with various health professionals and has undergone thoracic outlet surgery. The arbitrator preferred the applicant s catastrophic impairment reports: they were more comprehensive. The insurer psychiatrist (Dr. Spivak) interviewed Ms. Keck for one hour and did not detail the findings of the health professionals who saw Ms. Keck, nor did his report include an analysis of any work evaluations and whether her impairment would 7

8 impact her ability to work. He did not read the full reports prepared by the applicant s team. Although he stated that his psychiatric opinion would not have changed had he considered these reports, this was found to be speculative by the arbitrator and was afforded little weight. He did not interview any of the claimant s family or friends, nor did he speak with other members of the catastrophic team. Dr. Meikle did not interview Ms. Keck, nor did he consider the reports of the claimant s team. 2. Ms. Keck s prior employment history consisted of driving cars, and clerical chores relating to her husband s company. The arbitrator favoured the claimant s evidence that she has too much anxiety and pain to return to any of this employment. 3. Physical treatments: Ms. Keck had already received a few hundred treatments from the same clinic. The arbitrator accepted the insurer evidence of Dr. Holland that more treatments were not reasonably necessary. Psychology treatments: Ms. Keck admitted that she felt lonely after the accident and that going to the psychologist was a big part of her life because she had no one else to talk to. The arbitrator noted that the mere fact that the claimant enjoyed her sessions with the psychologist was not enough to consider insurer funding. Further, since her benefits were terminated, her relationship with her son and husband has improved. 8