November 16, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Decision Date: September 3, 2013
Heard Before: Arbitrator John Wilson
Mr. Baljit Deol was injured in a motor vehicle accident on April 10, 2011. He applied for SABs from Gore including Attendant Care and Housekeeping benefits. At the same time he requested recognition that he had suffered a catastrophic impairment. Gore deemed him catastrophically impaired. A dispute arose with regards to benefit entitlement and Mr. Deol applied for mediation which failed.
Mr. Deol then brought a motion for interim attendant care and housekeeping benefits pending the resolution of his dispute with Gore. He claimed that neither he nor his wife were able to work.
Arbitrator Wilson noted that the Regulation gives arbitrators discretionary authority to make interim orders pending the final order in any matter. Arbitrator Wilson also noted that arbitrators have applied a prima facie test of urgency/necessity in order to render a reasonable conclusion for entitlement. The holistic approach to the assessment of interim benefits is also useful. He examined the legal precedent for such orders, and the social policy behind the accident benefit system.
Mr. Deol requested interim benefits as he contends Gore ignored Form 1 recommendation including those of its own experts. He claims a financial burden of loss of income. The difficulty in paying for attendant and housekeeping services impaired the family structure. He provided T4 information showing his wife had pulled back from her work and had a lower income. She also stopped working for another employer whose ROE shows she departed due to stress and illness of her husband.
Gore argued initially that Mr. Deol failed to establish that Mrs. Deol who was a non-professional family caregiver sustained economic loss. Gore then submitted surveillance videos to the Board a few days prior to the hearing, contrary to rule 40.1 and the practice of full disclosure and fairness in a timely manner. Gore had ample time to submit the video at least 30 days before the motion date. It had made no request for leave to waive the requirements. Gore suggested that the surveillance was a part of an affidavit supporting the Insurer’s counter-motion and that the Rule 40.1 (30 days’ notice) would be complied with prior to the full arbitration hearing. Arbitrator Wilson stated
“This is ingenuous. It constitutes merely an attempt to avoid the consequences of Rule 40.1…. Consequently, in the absence of a curative order I will decide the outcome of this motion without giving any weight to the surveillance evidence proffered by Gore. To do otherwise would be to reward a conscious violation of the full disclosure principle embodied in the Dispute Resolution Practice Code.”
Gore also had requested the attendance of Mr. Deol for an examination under Oath. He refused to attend as he had not been provided certain documents beforehand, nor had disclosure been provided to Mr. Deol of any allegation made against him by Gore.
Arbitrator Wilson pointed out that the Schedule requires an insured to attend for an examination when requested by an insurer in matters that are relevant to the benefits claimed by an insured. He determined it would be unfair to compel Mr. Deol to attend such an examination without some foreknowledge of Gore’s concerns, and the information it was in possession of. According to the legislation, the “insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).”
Thus, until either the Insurer withdraws the request for the E.U.O., or Mr. Deol complies with the request, no benefits are payable. If the default is corrected, then any obligation by the Insurer to pay the benefits resumes and the amounts withheld become payable “if the applicant provides a reasonable explanation for the delay in complying with the subsection.”
There was no question that Mrs. Deol suffered an economic loss. Gore argued the that Mrs. Deol was working too much to actually be performing the care work required for her husband. The term economic loss is not defined in the Schedule. Upon review of the law Arbitrator Wilson accepted that it simply means any economic loss suffered by the treatment provider, however minimal.
The issue remained however, that Gore in its factum attempted to raise allegations of misconduct against both Mr. and Mrs. Deol. If in fact the troubling allegations of willful misrepresentation are proven, then any obligation to pay of benefits would be negated.
As this is the case Arbitrator Wilson ordered that the interim hearing remains suspended until such time as Mr. Deol complies with his obligation to be examined under oath. At that time the hearing will recommence and determination will be made to the entitlement of interim benefits.