February 20, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: David Leitch
Decision Date: January 23, 2009
Paritosh Bhada was involved in a single-vehicle accident on April 3, 2006. The Insurer of that vehicle, Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security National"), was not made aware of the accident until late August 2006. By letter dated August 30, 2006, Security National provided Mr. Bhada with an Accident Benefits Application Package but did not receive back his signed Application for Accident Benefits until December 18, 2006. Security National rejected Mr. Bhada's claims for accident benefits on both procedural and substantive grounds.
The issues of the hearing were to determine if
1. Security National was entitled to reject Mr. Bhada's claims on the ground that his Application for Accident Benefits was submitted after the time limit imposed by section 32(3) of the Schedule;
2. Mr. Bhada was entitled to caregiver benefits under section 13 of the Schedule;
3. Mr. Bhada was entitled housekeeping benefits under section 22 of the Schedule.; and
4. Mr. Bhada was entitled to medical benefits under section 14 of the Schedule for the treatment recommended in two treatment plans dated August 22 and November 15, 2006.
Mr. Bhada was driving his own vehicle and came to a stop for a traffic light. As he pulled away from the stop to turn left, one of the front tires of his vehicle burst causing the left side of his vehicle to go up onto a curb and hit a pole. There was damage to the tire, rim, axle and driver's side of his vehicle. He acknowledged that he sustained no visible injuries and reported no injuries to the investigating police officer. However, he maintained that he started to experience pain in his knee, back and shoulders about half an hour after the accident and later went on to develop pain in his "whole body". Still, he reported for and worked at his factory job as usual on the day of the accident and continued working thereafter. In addition, he acknowledged that he did not consult a doctor, go to a hospital or seek any medical attention for his injuries at the time of the accident. He stated that when he suffered from pain, his wife would sometimes massage his back with an ointment, usually on the weekends.
It was not until more than four months after the accident, in late August 2006, that Mr. Bhada sought medical attention for his injuries. He was examined by Dr. C, a chiropractor, who submitted a Disability Certificate and Treatment Plan to Security National, both dated August 22, 2006.
The following is a list of Mr. Bhada's "injuries," according to the reports: "headaches, less memory, vision problems, feeling dizziness, main pain in the low back, pain in neck, pain in upper mid back, pain in knee, pain in ankle, problems sleeping, frustration, can't concentrate, anxiety, problem with decision making, trouble sitting in a car, nightmares.”
Under caregiver benefits, Dr. C checked the "yes" box, indicating that he met the disability test in respect of that benefit and noted: "Applicant reports being primary caregiver to his 11 year old daughter". He then provided the following information about Mr. Bhada's "task/activity limitations" in relation to caregiving: "Applicant states that daily caregiver activities involving standing, sitting, lifting, bending and carrying are provocative of the described injuries." He indicated an "anticipated duration" of "9-12 weeks".
Under housekeeping benefits, Dr. C again checked the "yes" box, indicating that he met the disability test in respect of that benefit. He provided the following information about Mr. Bhada's "task/activity limitations" in relation to housekeeping: "Applicant states difficulty with household chores involving lifting, carrying, and bending, such as laundry, cleaning, vacuuming, and general household work, all of which are provocative."
Despite these entries in the Disability Certificate, Security National never paid Mr. Bhada caregiver or housekeeping benefits and maintained these denials at the hearing on both procedural and substantive grounds.
Part 8 of the Disability Certificate asked: "[A]re further examinations, investigations, or consultations contemplated or required?" Dr. C responded as follows: "The patient is currently impaired with respect to ADLs [activities of daily living]. A home-site assessment is recommended to identify the requisite assistive devices and education relating to improving biomechanical efficiency of everyday activities. The patient should be evaluated again in 6-8 weeks to determine functional capacity. Furthermore, the patient is experiencing difficulties relating to driving anxiety and sleep disturbance (nightmares). A psychological consult is recommended."
Again, despite these entries in the Disability Certificate, neither an in-home assessment nor a psychological assessment was ever carried out.
As for a psychological assessment, Mr. Bhada did submit an OCF-22 form that was completed by Dr. P, a clinical psychologist, on August 29, 2006. In support of this application, Dr. P relied upon the driving anxiety and nightmares mentioned in Dr. C’s Disability Certificate. Dr. D.C., also a clinical psychologist, who conducted a "paper review," determined that the assessment was not "reasonably required.”
Security National referred Dr. C's two Treatment Plans to Dr. B, another chiropractor. After reviewing Dr. C's reports and examining Mr. Bhada in January 2007, Dr. B expressed the opinion that neither of the Treatment Plans was reasonable and necessary.
Issue 1: The time limit imposed by section 32(3) of the Schedule
Part X of the Schedule sets out the procedures for claiming benefits. It requires an insured person to indicate his/her intention to apply for a benefit within a certain time limit; it requires the insurer to promptly provide the insured person with application forms and information to assist him/her in applying for benefits; and it requires the insured person to submit a signed application for benefits within a further specified time limit. Part X of the Schedule begins with section 31(1) of the Schedule which states that an insured "person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation." By implication, an insured person who fails to comply with such a time limit risks becoming disentitled to benefits unless he/she provides a reasonable explanation.
Security National was not made aware of Mr. Bhada's intention to apply for benefits until well after the time limit allowed for that part of the claims procedure. Security National did not rely upon that time limit, presumably because it was satisfied that Mr. Bhada had a reasonable explanation for the initial delay. Security National argued instead that its letter of August 30, 2006 provided the required application forms and information but that Mr. Bhada failed to return a signed Application for Accident Benefits until December 18, 2006, well after the time limit allowed for that part of the claims procedure.
The Supreme Court of Canada's decision in the case of Smith v. Co-operators General Insurance Co. clearly established that consumer protection is a main objective of automobile insurance law, that this objective is of particular importance in cases involving an insurer's obligation to inform the insured person and that the realization of this objective requires the insurer to provide the insured person with complete and accessible information. The goal of consumer protection is promoted by requiring insurers to provide "basic information" outlining the "most important points of the process" using "straightforward and clear language, directed towards an unsophisticated person." And that this should be interpreted in a way which protects consumers by requiring insurers to inform insured persons of the far more serious potential consequences of their failure to comply.
Applying the same reasoning to Mr. Bhada’s case, two questions arose: first, what were the potential consequences of Mr. Bhada's failure to comply with the time limit created by section 32(3)? Second, did Security National's letter of August 30, 2006 inform Mr. Bhada of these potential consequences?
Security National submitted that its letter of August 30, 2006 informed Mr. Bhada of this potential consequence. Two passages in the letter specifically mentioned a 30 day time limit but only one mentioned the consequence of non-compliance. It was set out in bold and read as follows: “The enclosed Application for Expenses (OCF-6) is to be completed and returned if you are claiming expenses or receiving services related to any of the benefits described above. Expenses will be denied if the Application for Expenses is not submitted within 30 days of your receipt of this form. Please attach all bills and receipts when claiming the expense.”
The use of the word "denied" in the second last sentence of above-noted passage failed to clearly communicate to Mr. Bhada the potential consequence of permanent disentitlement. In this case, the arbitrator found that Security National did not provide Mr. Bhada with the required explanations. For these reasons, Security National was not entitled to reject Mr. Bhada's claims by reason of his alleged failure to comply with the time limit created by section 32(3) of the Schedule.
Issue 2: Caregiver Benefits
Mr. Bhada was married to Ms. Pushplata Singh Bhada. They had one daughter, Katyayani, born on August 7, 1995, who was ten years old at the time of the accident. Mr. Bhada submitted that he was Katyayani's primary caregiver prior to the accident and that, as a result of the accident, he was unable to resume this role again until December 15, 2006.
Mr. and Ms. Bhada both testified that Ms. Bhada started a dental hygienist course in January 2006 and that from that point to the date of the accident in early April 2006, Ms. Bhada was very focused on her studies. The arbitrator accepted this evidence but did not accept the implication that Ms. Bhada's course prevented her from acting as Katyayani's primary caregiver between January and April 2006. This implication would have only followed if it was supported by additional evidence that Mr. Bhada was at home and available to take on the role of primary caregiver during those hours after Katyayani got home from school until she went to bed.
Mr. Bhada initially suggested that he worked the night shift until just before the accident and that he was, therefore, at home in the afternoon when Katyayani got home from school. However, Mr. Bhada later admitted that he could not recall when he switched from the night shift to the afternoon shift. Records from Mr. Bhada's employer confirmed that he switched to the afternoon shift in November 2005. During the period from November 2005 to April 2006, Mr. Bhada was not at home and available to care for or supervise Katyayani from the time she got home from school until she went to bed. Ms. Bhada testified that she finished her course in time to meet Katyayani after school, accompany her home and remain with her at home until she went to bed. This was by far the most significant period of time during which Katyayani would have required daily care and supervision. Mr. Bhada continued to work the afternoon shift after the accident and, therefore, continued to be unable to care for and supervise Katyayani from the time she got home from school until she went to bed. In other words, it was not because of Mr. Bhada's accident injuries that he was unable to be Katyayani's primary caregiver after the accident. It was, as it had been before the accident, because of his employment schedule.
However important Ms. Bhada's course may have been to her and her family, it did not prevent her from remaining the parent with the primary responsibility to provide for Katyayani's care and supervision.The arbitrator concluded that Mr. Bhada was not Katyayani's primary caregiver at the time of the accident and that his claim for caregiver benefits must be rejected.
Issue 3: Housekeeping Benefits
Mr. Bhada submitted that he was also the family's principal housekeeper prior to the accident and that, as a result of the accident, he was unable to resume this role again until December 15, 2006.
This submission required Mr. Bhada to establish a pre-accident pattern of conduct, in particular, that he normally performed housekeeping services prior to the accident. But unlike caregiving services, Mr. Bhada's opportunity to perform housekeeping services would not have been directly linked to the schedules of the other members of his family; he could have done housekeeping whether they were at home or not. The arbitrator, therefore, accepted Mr. and Ms. Bhada's evidence that once Ms. Bhada's course started in January 2006, Mr. Bhada became the family's principal housekeeper and remained so up to the date of the accident in April 2006.
However, that was not enough to establish Mr. Bhada's entitlement to housekeeping expenses. He also had to establish that his accident caused impairments which left him with a substantial inability to continue performing the housekeeping services he performed before the accident. Dr. C's Disability Certificate indicated that Mr. Bhada satisfied this disability test and that housekeeping tasks would be "provocative" of his injuries. But Dr. C's Treatment Plans also confirmed that Mr. Bhada was able to carry on as a "factory worker" after the accident, albeit with "symptom aggravation" and "difficulty". Mr. Bhada was a "production assembler" whose duties were to operate and monitor the product of "moulding machines". Mr. Bhada described this as light employment, he maintained that he was too tired after working to perform his housekeeping tasks. For the first six months after the accident, Mr. Bhada only had to perform housekeeping tasks in the family's small, one-bedroom apartment. If Mr. Bhada's post-accident fatigue, symptoms and other difficulties did not render him substantially unable to operate a moulding machine through regular shifts in a competitive work environment, it was unlikely that they rendered him substantially unable to perform ordinary housekeeping tasks in his own home at his own pace.
Issue 4: Medical Treatment
Dr. C's first Treatment Plan, dated August 22, 2006, recommended therapy sessions and treatments of the following kinds: 5 chiropractic, 8 massage, 6 acupuncture, 6 passive PT modality and 12 functional exercise programs.
At the hearing, Dr. C acknowledged that Mr. Bhada's injuries were uncomplicated but maintained that the treatment he recommended was beneficial to Mr. Bhada. He did not agree that Mr. Bhada's injuries were "self-resolving" without treatment. He stated that the delay in providing treatment can cause symptoms to become chronic and more difficult to resolve. He noted that the amount of passive treatment he recommended for Mr. Bhada was, in fact, reduced in the second Treatment Plan.
On his cross-examination at the hearing, Dr. B acknowledged that he did not examine Mr. Bhada until January 7, 2007, approximately nine months after the accident and four months after Dr. C's initial examination.
In the arbitrator’s view, Dr. B's opinion should have been assigned greater weight than Dr. C's for the following reasons.
First, while Dr. B's opinion was based, in part, on his January 2007 examination of Mr. Bhada, Dr. C's initial examination of Mr. Bhada also took place approximately four and a half months after the accident. In other words, neither Dr. C’s opinion nor Dr. B's opinion was based on the early clinical assessment of Mr. Bhada's physical injuries and timely follow-up. The strength of both their opinions suffered from this fact.
Second, Dr. B's opinion was not based entirely on his examination in January 2007. According to his report and his evidence at the hearing, it was also based on "scientific literature" and a "treatment protocol", neither of which was challenged by Dr. C. These sources of evidence can be relied upon when, as in the case, there is a complete absence of early clinical assessment and follow-up.
There was a third aspect of Mr. Bhada's claim which troubled the arbitrator. The arbitrator understood that Mr. Bhada may not have been aware of his right to claim medical treatment from Security National until late August 2006. However, the arbitrator found it difficult to understand why, if he believed he was injured in the accident, he did not seek medical treatment through his employer's benefit plan or through public medical insurance. Both were available to him but there was no evidence that either was accessed. The arbitrator was left with the impression that Mr. Bhada himself did not see any need to seek medical treatment following his accident. This impression was not to be determinative of his claim — he was not a health care professional capable of diagnosing himself and prescribing appropriate treatment — but it tended to undermine his claim for treatment many months later.
Issue 5: Psychological Examination
Mr. Bhada did seek Security National's prior approval, through the OCF-22 form submitted by Dr. P, it was required to pay for the examination as long as it was "reasonably required in connection with a benefit" claimed.
Security National rejected Mr. Bhada's application on the strength of Dr. D.C.'s report dated September 21, 2006 which stated that a psychological examination was not "reasonably required". Dr. D.C.'s report was based on her "paper review" of the Disability Certificate, dated August 22, 2006 and Dr. P's OCF-22 form, dated August 29, 2006.
Dr. D.C. acknowledged Mr. Bhada's complaints of driving anxiety and nightmares, as recorded in the Disability Certificate, but maintained that he had only reported these problems to Dr. C, a chiropractor, not to Dr. P or to some other psychologist or health professional qualified to address issues of psychological impairment.
In Dr. D.C.'s view, Dr. P should have communicated directly with Mr. Bhada in order to determine, at least in a preliminary way, whether Mr. Bhada had psychological problems, whether those problems were caused by the accident and whether he would consent to a psychological assessment. In support of this view, Dr. D.C. referred to the "Guidelines for Assessment and Treatment in Auto Insurance Claims", published by the Ontario Psychological Association (the OPA) on January 11, 2005. Had Dr. P followed these Guidelines, he may have insisted upon some direct personal contact with Mr. Bhada and may have also obtained, and provided in the OCF-22, more information than he did; indeed, more information than even Dr. D.C. called for in her testimony. These Guidelines are only recommended or best practices.
Dr. D.C.’s task was to determine whether the psychological examination Dr. P requested was "reasonably required" under section 24. The arbitrator did not doubt that in determining the reasonableness of Dr. P's request, Dr. D.C. was entitled to consider the standards of their common profession. But ultimately, the question under the Schedule was not whether Dr. P should have obtained more information from Mr. Bhada; it was, whether Dr. P's request was reasonable in light of the information he already had from Mr. Bhada.
The arbitrator could not agree with Dr. D.C. that Mr. Bhada only reported his psychological problems to Dr. C. The Disability Certificate required Mr. Bhada to "describe any injuries you sustained as a direct result of the accident.” His list included problems which either were, or could have been, psychological in nature, including: "problems sleeping, frustration, can't concentrate, anxiety, problems with decision making, trouble sitting in a car, nightmares." It was true that the other Parts of the Disability Certificate were completed by Dr. C but this did not mean that Mr. Bhada only reported his problems to Dr. C. Mr. Bhada reported his problems to anyone who read the Disability Certificate.
The arbitrator also disagreed with Dr. D.C.'s suggestion that a psychologist must have some personal contact with the applicant before requesting the psychological examination. Again, there may be situations where the absence of direct personal contact between the psychologist and the applicant renders the request unreasonable. But there may also be situations where the psychologist has sufficient information from other sources to make the request reasonable. Certainly the psychological examination itself would require direct personal contact but, as noted in the OPA Guidelines: "it is not intended that the psychologist complete an assessment in order to propose an assessment."
In this case, the Disability Certificate provided Dr. P with both a list of Mr. Bhada's complaints and his affirmation that these problems were direct results of the accident. The evidence did not suggest any reason to think that, had he been contacted directly, Mr. Bhada would have told Dr. P anything significantly different than what he reported in writing in the Disability Certificate. Nor did it suggest any reason to think that Mr. Bhada would not have consented to a psychological assessment had one been approved. Therefore, the arbitrator concluded that the Disability Certificate provided Dr. Pwith sufficient information to form the opinion that a psychological examination was "reasonably required".
To conclude, on the issue of Security National’s entitlement to reject Mr. Bhada’s claims the arbitrator found that Security National was not entitled to reject Mr. Bhada's claims by reason of his alleged failure to comply with the time limit created by section 32(3) of the Schedule. The arbitrator concluded that Mr. Bhada was not entitled to caregiver, housekeeping and medical benefits. However, Mr. Bhada was entitled to the psychological examination costs.