September 20, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Hamilton and Dominion
Date of Decision: July 26, 2017
Heard Before: Adjudicator Barry Arbus
Mr. Ronald Hamilton was injured in a car accident on July 15, 2011. He applied for and received statutory accident benefits from Dominion and Mr. Hamilton applied for arbitration at the FSCO.
The issues in this Hearing are:
- Did Mr. Hamilton sustain Catastrophic (“CAT”) Impairment within the meaning of the Schedule as a result of the accident?
- Is Mr. Hamilton entitled to receive a weekly Income Replacement Benefit (“IRB”) in the amount of $400.00 from July 22, 2011 to date and on-going?
- Is Mr. Hamilton entitled to payments for housekeeping and home maintenance services of $100.00 per week, commencing July 15, 2013 to date, and on-going?
- Is Mr. Hamilton entitled to payments for the following Cost of Examinations:
- $4,834.93 for an OCF-18, dated September 19, 2012, for cognitive and learning therapy;
- $1,800.00 for an OCF-18, dated August 1, 2013, for a CAT assessment review as submitted by Dr. Koch;
- $2,034.00 for an OCF-18, dated August 1, 2013, for a CAT collating report as submitted by Dr. Koch;
- $2,034.00 for an OCF-18, dated August 1, 2013, for an essential clinical tasks report as submitted by Dr. Koch?
- Is Mr. Hamilton entitled to interest for the overdue payment of benefits?
- Is Dominion liable to pay Mr. Hamilton’s expenses in respect of the arbitration?
- Is Mr. Hamilton liable to pay Dominion’s expenses in respect of the arbitration?
- Mr. Hamilton did not sustain a CAT Impairment as a result of the July 15, 2011 accident.
- Mr. Hamilton is not entitled to IRBs as a result of the July 15, 2011 accident.
- Mr. Hamilton is not entitled to receive payments for housekeeping and home maintenance services of $100.00 per week, commencing July 15, 2013 to date, and on-going.
- Mr. Hamilton is entitled to the total payment of $2,000.00 for the three OCF-18s, dated August 1, 2013, submitted by Dr. Koch. Mr. Hamilton is not entitled to $4,834.93 for the cognitive and learning therapy OCF-18, dated September 19, 2012.
- Mr. Hamilton is entitled to interest for the overdue amount, in accordance with the Schedule for the overdue payment of benefits.
- Should the parties become unable to resolve the issue of expenses, they shall subsequently schedule an Expense Hearing before me in accordance with the provisions of the Dispute Resolution Practice Code (“DRPC”).
Mr. Hamilton was 62 and considered himself a healthy robust individual who was in excellent shape, with the exception of his asthma. Mr. Hamilton enjoyed an active life prior to the car accident with an active social and recreational calendar as he was a certified diver and a certified triple A level hockey coach for older teenagers. Mr. Hamilton completed grade 11, with some post-secondary education certificates for coaching and the sale of cars.
Mr. Hamilton has worked his entire career in car repairs and sales, all of which required some manual labour, and customer service. At the time of the car accident A, Mr. Hamilton was considered a senior salesperson that was in control of buying and selling cars throughout Ontario auto auctions on behalf of his employer. His employer would pay for said vehicles and split the profit and loss with Mr. Hamilton once the vehicles were refurbished and resold or leased. Mr. Hamilton was compensated by a $2,000.00 per week salary draw, which was later deducted from his actual earned income. This was done to provide Mr. Hamilton with a steady income as the fiscal year would have high and low sales cycles during any one year. Mr. Hamilton was involved in a second car accident on August 28, 2014.
Mr. Hamilton sought a CAT determination as a result of the July 15, 2011 car accident A.Both parties conducted CAT assessments.
Mr. Hamilton asserts that the combined physical impairments produce a total Whole Person Impairment (WPI) percentage of 32% under s. 3(2)(e) of the Schedule. Mr. Hamilton admits that this in itself does not meet the 55% threshold for CAT Impairment; however, under 3(2)(f) Mr. Hamilton was found to have two domains deemed as marked impairments. Mr. Hamilton submits that with the marked impairment ratings, he crossed the threshold for CAT Impairment with a WPI percentage of 69%.
Mr. Hamilton relies upon the Ontario Court of Appeal’s decision Kusnierz v. Economical, and its methodology of combining the physical and psychological impairments in order to reach the 69% WPI. Further, Mr. Hamilton argues that the Court of Appeal in Pastore v. Aviva found that a marked impairment in one of the four domains of functioning as defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) is sufficient for a finding of CAT Impairment.
In regards to the two class 4 or marked impairment ratings as submitted by Dr. G on behalf of Mr. Hamilton, the first marked impairment is Domain 3 – Concentration, Persistence and Pace. The second marked impairment was in Domain 4 - Deterioration or Decompensation in Complex Work or Work-Like Settings. Dr. G suggests that this domain focuses on repeated failures to adapt to stressful circumstances, such as withdrawing from situations, or experiencing exacerbation of mental dysfunction, such as psychological decompensation, difficulties maintaining activities of daily living, problems with social relationships, difficulties with completing tasks, problems interacting with supervisors and peers, and reduced stress tolerances.
Dominion argues that with respect to Domain 3 - Concentration, Persistence and Pace, difficulties in this domain would include trouble returning to work. Mr. Hamilton’s evidence shows he continued to work a few days post-car accident to present date. Dominion suggests that Mr. Hamilton’s evidence of a significant decline in business prior to these assessments being concluded is not consistent with his tax returns. Dominion argues that as a commission-based employee, Mr. Hamilton would not make increasing amounts of money year-over-year if he was not buying and selling significant numbers of vehicles. It was not until after the August 2014 car accident that the tax returns started to decline, at which point Mr. Hamilton had turned 66 years of age. Dominion argues that if Dr. G rates this domain as marked, on the basis that the impairment significantly impedes (emphasis added) useful functioning, it is very difficult to reconcile with his income levels that kept increasing post-car accident A. Dominion submits that Mr. Hamilton most likely has a mild impairment in this domain.
In regards to Domain 4 - Deterioration or Decompensation in Complex Work or Work-Like Settings, Dominion pointed out that Dr. G indicates that this refers to repeated failures to adapt to stressful circumstances. Dr. G indicates that Mr. Hamilton demonstrates symptoms consistent with moderate problems in adaptation and then inexplicably gives him a marked rating in this category too. Dominion submits that the evidence does not even support the moderate symptoms Dr. G indicates, and that the proper rating would be either no impairment or mild impairment.
Dominion argued that Mr. Hamilton does not show repeated failure. In fact, he shows marked persistence in continuing to adapt to work and his elite hockey coaching duties. The evidence shows Mr. Hamilton did not withdraw from situations due to psychological factors but quit scuba diving due to pressure headaches and golf due to vertigo, both of which are physical issues rated elsewhere. Mr. Hamilton continued on with virtually every other main activity in his life. Dominion submits that there is no evidence of problems with social relationships. Mr. Hamilton and his wife continue to have a good relationship and socialize with friends, although perhaps less often than before. There is no evidence that Mr. Hamilton’s problems completing tasks, such as building a patio, have anything to do with psychological impairment as opposed to physical impairment, which is already rated elsewhere.
Further, Dominion argues that in regards to the above-listed matters that demonstrate impaired functioning, the only factor that may be present in this case is some avoidance of social situations, as Mr. Hamilton indicated that he does not socialize as much as before. The reason for same appears mainly to do with cognitive functioning and fatigue, as opposed to a true psychological standpoint alone. But Dr. G again somehow rates Mr. Hamilton with a moderate impairment and inexplicably extends it to be marked.
Dominion also argues that Dr. G’ report has significant flaws. The largest flaw is that Dr. G essentially deals almost exclusively with cognitive issues that Mr. Hamilton is suffering from, as opposed to psychological issues. Dr. G’ report is almost exclusively based on Mr. Hamilton’s self-report and his test answers, all of which are subjective.
Finally, Dominion argues that there is a further flaw in Dr. G’s methodology in that the AMA Guides, on p. 293, encourages doctors to obtain information from medical and nonmedical sources and to conduct collateral interviews as an additional aide in gathering additional information, but Dr. G decided not to do so, despite both Dr. Baxter and Mrs. Hamilton indicating that they would have co-operated in a collateral interview. Dominion argued that the fourth domain should also be rated as mild.
Upon review of the evidence, the law and the medical reports the Arbitrator agreed with Dominion and was unconvinced that the areas of marked impairment are indeed marked.
On the basis that Mr. Hamilton did not have marked impairments, the Arbitrator determined that Mr. Hamilton did not sustain a CAT Impairment as a result of the July 15, 2011 accident.
The parties have agreed that it is the burden of Mr. Hamilton to show that because of the July 15, 2011 car accident A, he suffered both a substantial inability to perform the essential tasks of his pre-car accident employment and to also show that as a result of the July 15, 2011 car accident A, he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, in order to be successful in claiming an IRB.
Mr. Hamilton argues that he continues working to date, but on modified duties such that he works up to five hours per day plus taking phone calls up to 6 p.m., whereas his pre-car accident level of work included eight hours per day plus taking phone calls up to 9 p.m. on some nights. Mr. Hamilton argues that he now has modified duties because he receives help from an assistant with paper work regarding the purchases and sales of vehicles. Mr. Hamilton also argues, without any direct objective and corroborative evidence, that the number of auctions he attends has been reduced which has significantly affected his business. The average auction is five hours long.
Upon reviewing the evidence the Arbitrator concluded that Mr. Hamilton’s evidence is that he negotiated his non-union management position with his new employer at the time of his hiring, and continues to do this job. There was no evidence that Mr. Hamilton was replacing a previous employee. There is no evidence that he has set hours of work or if he is able to work at his own pace. Mr. Hamilton’s job description made by Mr. Hamilton was extremely vague, along with the hours of work and the expectations of his employer in that regard. It was clear that Mr. Hamilton was elevated to a sort of freelance wholesale salesperson and purchaser of vehicles.
There was no evidence that the employer modified this position other than installing checks and balances to catch administrative errors within certain paperwork. There is no evidence that the employer hired any person(s) to relieve Mr. Hamilton specifically, in an effort to accommodate Mr. Hamilton due to the 2011 car accident A. The evidence also shows that Dominion did not terminate the entitlement to IRBs until after the completion of the first 104 weeks, on October 23, 2013, and only after an extensive battery of post-104 IRB assessments. The evidence is that the income during the first 104 weeks post-car accident simply zeroed out any amount that could be owing to Mr. Hamilton. There was no evidence before me that Dominion terminated IRB entitlement during the first 104 weeks post-car accident A.
The Arbitrator concurred with Dominion that Mr. Hamilton’s deficits or difficulties do not meet the substantial inability test. Especially with Mr. Hamilton’s reported income increasing year after year, strictly on his vehicle purchasing and sales efforts alone, and therefore, Mr. Hamilton is not entitled to IRBs as a result of the July 15, 2011 accident.
It is undisputed that Mr. Hamilton did not have a transitional policy, as the policy was renewed after September 1, 2010. As such, a Housekeeping and Home Maintenance Benefit could only be paid by Dominion if Mr. Hamilton purchased optional benefits or was deemed CAT. Mr. Hamilton did not purchase optional benefits. In light of the earlier decision that Mr. Hamilton is not CAT, Mr. Hamilton is not entitled to receive payments for housekeeping and home maintenance services as a result of the July 15, 2011 accident.
The question remains are the expenses of a coordinator are reasonable? The Arbitrator takes the position that under s. 25(1)(5), a reasonable expense to be incurred is that of a coordinator, separate and apart for any other regulated health professional. A a CAT determination application is complex and complicated and as such, a coordinator’s role is a necessary and important component or function in the process. Therefore, I find that Mr. Hamilton is entitled to the payment of $2,000.00 for the three OCF-18s, dated August 1, 2013, as submitted by Dr. K.
As a result of the above decision, Mr. Hamilton is entitled to interest for the overdue amounts regarding the $2,000.00 for the three Dr. Koch OCF-18s, in accordance with the Schedule.