January 29, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Segrid Cumberbatch and The Guarantee Company of North America
Date of Decision: July 27, 2018
Heard Before: Adjudicator Alan Smith
ACBs and SPECIAL AWARD: was applicant CAT impaired; the question before the Arbitrator is not to pick which OCF 1 is preferable but rather what is appropriate in the circumstance; there is a need for assessors to take holistic approach when evaluating injuries and patients
Ms. Cumberbatch was injured in a car accident on May 22, 2008 and sought accident benefits from Guarantee payable under the Schedule. When they were unable to resolve their disputes Ms. Cumberbatch applied to the FSCO.
The issues in this Hearing are:
- What amount of ACB is Ms. Cumberbatch entitled to receive monthly from September 16, 2014, to date and ongoing?
- Is Ms. Cumberbatch entitled to interest for the overdue payment of ACB?
- Is Guarantee liable to pay a Special Award because it unreasonably withheld or delayed payments to Ms. Cumberbatch?
- Is Guarantee liable to pay Ms. Cumberbatch’s expenses in respect of the arbitration?
- Is Ms. Cumberbatch liable to pay Guarantee’s expenses in respect of the arbitration?
- Ms. Cumberbatch is entitled to receive ACB in the following amounts:
- $1,728.19 per month from September 16, 2014, to October 21, 2017;
- $2,593.67 per month from October 22, 2017 to date and ongoing;
- Ms. Cumberbatch is entitled to interest for the overdue payment of ACB.
- Guarantee is liable to pay a Special Award because it unreasonably withheld or delayed payments to Ms. Cumberbatch.
- Expenses shall be payable.
THE DECISION OF ARBITRATOR MUTCH
The sole issue before Arbitrator Mutch was that of whether the Applicant was Catastrophically Impaired pursuant to the Schedule. I find that many of the factual determinations the Arbitrator made are applicable to the issue of ACB in the present arbitration.
Director Delegate Evans summed up Arbitrator Mutch’s findings:
Since the accident, she suffered pain and depression, lacked motivation, avoided social situations, and had trouble concentrating and remembering things. She was not able to return to work, discontinued most of her volunteer activities, and only returned to church sporadically from 2012 on. After her son was born about five months after the accident, she had mostly stayed home to take care of him. She testified that she struggled to initiate and complete household tasks and inconsistently cared for herself, like bathing, washing her hair and brushing her teeth.
The Arbitrator found that the Applicant’s, “difficulties are not so much the completion of tasks, but that she has difficulty initiating tasks, and that she does things on an irregular and haphazard basis”.
Adjudicator Smith reviewed the witness testimony from the hearing and determined that Ms. Cumberbatch lacks the ability to motivate herself to initiate basic tasks of self care, of house work, or meal preparation.
During her cross-examination, the applicant agreed largely with Ms. Phinney’s description of her typical day at that time, which included waking up at 5 or 5:30 a.m., doing 20-30 minutes of worship, watering the lawn and garden (something for which she was not responsible pre-accident), attending church regularly, taking her son to activities, attending a monthly couples’ group at her church with her husband, and assisting her son with homework. She indicated that her report to Ms. Phinney of showering daily was her “objective” and “not the reality”. She stated that while Ms. Phinney’s description of her typical day at that time all made sense, some of the activities were not done in the consistent manner that the report suggested.
The Applicant also stated in cross-examination that she has minimized or even withheld her level of dysfunction to different assessors. She would hide the mess and bathe when she knew an assessor was coming to her home. She would sometimes under-report her difficulties to assessors out of fear and/or shame.
Adjudicator Smith reviewed the medical assessments, functional assessments and other reports provided by the insurer and the applicant.
Adjudicator Smith noted that only relevant assessment produced by the Insurer was in November 2016 by RSW Phinney which recommended that no further ACB be provided.
Should new OCF-1’s be constructed?
The quantum of ACB is to be determined by the trier of fact. However, this case is unique in that the only Form 1s tendered in evidence before the learned Arbitrator for the relevant period after September 2014 are from the Applicant’s OTs. The professional opinions of both OTs are uncontroverted because the Guarantee explicitly chose not to obtain responding Form 1s. More importantly, it is the Applicant’s position that the professional opinions of the OTs are entirely consistent with the documentary evidence, oral evidence, and grounded in standards required by the College of Occupational Therapists and applicable guidelines.
Adjudicator Smith agrees with the Applicant that, “While it remains the authority of the arbitrator to ultimately determine the quantum of ACB, arbitrators have been cautioned against constructing a Form 1”. I am also cognizant that this is not a process of “final offer selection” i.e., I am not bound to select one party’s assessments over that of the other. The question is what is appropriate in the circumstances. I note that the issue was addressed by Arbitrator Mills in Whyte v. State Farm. In that decision the Arbitrator found that the quantum of ACB required could be reasonably based on a retroactive OCF-1 with substantiation from testimony at the hearing. Given the unique situation in the present case, where the only relevant OCF-1’s provided were by the Applicant, in my view the correct approach is to take the same approach as was taken in Whyte. I therefore decline to construct new OCF-1’s and will base the quantum of ACB on the OCF-1’s provided in evidence at the hearing substantiated by the testimony of the Applicant and OT.
Adjudicator Smith then examined the question of whether the OCF-1 Hourly Rates are Correct?
The Insurer argues that, “While Ms. Neufeld quantified [the 2014] Form 1 at $1,728.19 per month, she mistakenly used the OT hourly rates that apply for accidents that occur on or after September 1, 2010. Using the correct hourly rates, as indicated on the Form 1 itself, the amount of the 2014 Form 1 should be $1,481.78 per month.
The Applicant responds that:
There are two significant issues with this argument. First, it must be rejected as it violates the rule in Browne v. Dunn. This problem was never raised with Ms. Neufeld in cross-examination and she was never given the opportunity to explain or clarify her professional opinion in this regard. It would be prejudicial to the Applicant to allow the Guarantee to raise this issue at this juncture…. Another example of prejudice stems from the Applicant being deprived of the opportunity in re-direct to explicitly question her professional opinion as to the hours necessary, having the benefit of the medical evidence available today. If this was a live issue at the hearing, her professional opinion would have been of important use to the Tribunal in determining the appropriate quantum of ACB. Secondly, this argument entirely and conveniently ignores Ms. Neufeld’s testimony that the amounts she gave in the 2014 Form-1 were “conservative.” Even if she erred in the rates she applied, it was her professional opinion the hours allotted by her were low and should have been higher. Therefore, there is medical evidence and an OT opinion which justifies an attendant care amount in excess of the 2014 Form-1. The quantum of attendant care is properly to be determined by the Arbitrator in this case and the Applicant submits that the appropriate amount should be $1728.19 per month or higher.
Adjudicator Smith agrees with the Applicant that, as the hourly rate issue was never raised during the arbitration hearing, it would be unfair for me to consider it now, and also agreed that the OT clearly indicated that her time estimations were “conservative”, thus alleviating any concerns that an inflated dollar value was calculated.
On the basis of the evidence Adjudicator Smith found that the evidence of the applicant’s OT was reasonable and to be preferred because the OT reflects a holistic approach to the assessment of the Applicant as explained below in the discussion regarding a Special Award.