November 29, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator David Evans
Date of Decision: July 21, 2014
Paragraph 2 of the Arbitrator’s order dated November 23, 2012, is rescinded and replaced with the following:
Ms. M.G. is entitled to attendant care in the amount of $1,615.32 from June 3, 2007 and ongoing.
Otherwise, the appeal and cross-appeal herein are rejected and the Arbitrator’s order is affirmed.
REASONS FOR DECISION
On November 2, 2005, Ms. M.G., a registered nurse, was crossing a street within a crosswalk on a green light when she was struck by a school bus and knocked to the ground, striking her head. She had a mild closed head injury along with poor memory, inability to concentrate, focus or pay attention to tasks, inability to multi-task, word-finding difficulties, constant headaches, depression, anxiety, elements of post-traumatic stress disorder, chronic pain, interrupted sleep, frustration, impatience, irritability, lack of motivation, dizziness, loss of balance, loss of peripheral vision, lost sense of smell and incontinence.
Economical paid ACBs initially, but terminated them after the two year mark in May 2008 on the basis she had not suffered a catastrophic impairment.
Arbitrator Sapin determined that, pursuant to the SABS,1996, Ms. M.G. sustained a catastrophic impairment as a result of a car accident on November 2, 2005. This finding entitled Ms. M.G. to continued attendant care benefits (ACBs) beyond 104 weeks after the accident, a special award on the basis that Economical unreasonably withheld income replacement benefits (IRBs), and arbitration expenses. The amounts of the special award and of the expenses have still to be determined.
Both parties appeal that amount, for different reasons. Ms. M.G. submitting she is entitled to a greater amount starting earlier. Economical appealed the special award and the granting of expenses to Ms. M.G.
The Arbitrator accepted that as a result of the accident the Applicant sustained the following injuries and impairments: a concussion or mild closed head injury, poor memory and found that Ms. M.G.’s life changed dramatically after the accident, and that after two failed attempts at a return to work, her condition deteriorated until she was “barely functioning at all.” Ms. M.G. satisfied the requirements for catastrophic. The Arbitrator reviewed the opinions of two OTs, one who visited Ms. M.G. only once, and one who completed the Form 1s.
Ms. M.G. relied on three Form 1s – Assessment of Attendant Care Needs that were prepared by an occupational therapist each recommending increasingly larger retroactive ACB amounts retroactive to April 2010. Arbitrator Sapin found the SABS prevents retroactive assessments, so the issue “is limited to determining whether the recommended attendant care is reasonable and necessary going forward from the date of each Form 1”. Nonetheless, Arbitrator Sapin awarded $1,462.70 per month from May 31, 2008 and ongoing, when the first Form 1 – the only one in existence as of that date – was for $1,020.01. The main issue of Ms. M.G.’s cross-appeal is the quantum of level 2 basic supervisory care required. Arbitrator Sapin had concerns that the OT preparing all of the Forms 1s had developed an emotionally close relationship with Ms. M.G. which compromised her impartiality and ability to act objectively.
As for the special award, Economical appealed the award for its suspension of the IRBs. Economical suspended them on November 1, 2009, on the basis Ms. M.G. had not engaged in treatment that would have either allowed her to return to work or shortened the period the IRBs were payable. The recommended treatment arose from an insurer’s examination.
Arbitrator Evans provided the following analysis of the cross-appeal and of Economical’s appeal. Firstly Arbitrator Evans considered Arbitrator Sapin’s calculation of the ACB in appendix “C”, and then whether, as Ms. M.G. submits, a greater amount should have been awarded for basic supervisory care, and finally whether or not a higher ACB could be claimed retroactively.
Appendix “C” to the Arbitrator’s decision is the key to the quantum aspect of the decision, for, as Ms. M.G. submits, “The Arbitrator gave no reasons for the quantum of the attendant care, other than as can be gleaned from her calculations in Schedule C.” Ms. M.G. submits that the most basic error is that the Arbitrator provided no reasons for the figures in Appendix “C. After reviewing the law both Arbitrator Evans, and the parties agreed that Arbitrator Sapin made a number of errors in her Appendix “C.” She erroneously indexed the hourly rates for attendant care, she rates for Level 1 and Level 3 care from the wrong Form 1, and there were mathematical errors in the Appendix. The appendix did not clearly set out how the figures were derived.
Arbitrator Evans proceeded to review the Appendix “C” and correct the omissions and errors it contained. He then determined that Ms. M.G. should have been awarded $1,615.32 based on the findings, and amended Arbitrator Sapin’s order to reflect that amount.
Arbitrator Evans then turned to the amount of Level 2 Supervisory Care.
Upon review of Arbitrator Sapin’s decision, Arbitrator Evans indicated that there was indeed an overly emotional involvement between Ms. M.G. and her OT to the extent that she compromised her impartiality and ability to objectively assess Ms. M.G.’s needs from an occupational therapy viewpoint. This in turn brought into question the reliability of Form 1 versions 2 and 3.
Economical submitted that “In general, factual determinations by Arbitrators are not subject to review on appeal. In terms of the amounts of attendant care that Arbitrator Sapin found appropriate, these were factual determinations that should not be disturbed. Her decisions should not be second guessed as she was the trier of fact and was able to hear the 11 days of evidence on a face-to-face-person basis and assess the credibility of witnesses.” Economical also submitted that factual findings of Arbitrator Sapin should not be overturned.
Ms. M.G. submits that for the period of the second Form 1 (March 2009) the Arbitrator preferred the evidence of one OT over another. The OT who performed an in-home IE in respect of a treatment plan did not prepare a Form 1, nor was she assessing the Applicant’s attendant care needs.
Ms. M.G. submits:
[T]he Arbitrator seemingly interpreted the Form 1 to say that attendant care is not warranted if the person could get an attendant under s.15 of the SABs. In this case, the Applicant never made application for an attendant under s. 15, nor did the insurer offer it… Even if the same benefit is available under two different sections there is no “duplication”, unless the insurer is attempting to have the same thing paid for under two different sections, which was not the case here.
Arbitrator Evans agreed with Ms. M.G. that the Arbitrator Sapin’s reasoning on this point is weak, and Arbitrator Evans found that Ms. M.G. is only entitled to the increased ACBs due to the Appendix “C” corrections.
Arbitrator Evans then turned to the question of retroactive ACB benefits. He noted that arbitral case law has been mixed on this issue. The SABS s. 39(3) provides that “An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with subsection (1) is submitted to the insurer.” He found that there is a world of difference between a claim for an ACB and a claim for an assessment or examination. SABS in the subsection speaks more to the timing of payment rather than entitlement. Further since there already was an assessment of attendant care needs in place when the later Form 1s were served, Arbitrator Evans doubted that s. 39(3) applies in any event.
Arbitrator Evans found that Arbitrator Sapin erred in finding in this case that the second and third Form 1s could not be retroactive. Furthermore, she did retroactively increase the ACB as of the date Economical had terminated it. The increase in the ACB arose out of the second Form 1 that was supposed to be retroactive to the first Form 1. Accordingly the ACB should be in the amount of $1,615.32 from June 3, 2007.
Special Award and Award of Expenses
The special award related to Economical’s termination of IRBs. Arbitrator Sapin found that “Economical did not reinstate Ms. M.G.’s IRBs until just before the start of this hearing, two and a half years after stopping them. Economical did not provide any explanation for the delay. Both the delay and the lack of any explanation to be completely unacceptable.” Economical submitted that it stopped IRBs on the basis of a physician’s report suggesting that medication would alleviate the symptoms. When it was proven they did not the IRBs were not reinstated immediately. There was an unexplained gap of some six weeks before benefits were reinstated. So to that extent at least, the evidence supports the Arbitrator Sapin’s conclusion that benefits were unreasonably withheld for some period.
Therefore, Economical’s appeal of the granting of a special award is denied, without prejudice to either party’s right to appeal the quantum, whenever that is determined.