December 26, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Stuart Mutch
Date of Decision: September 18, 2014
DECISION ON A MOTION
John Cook was hurt in a car accident on March 4, 2011, when he struck and killed a young woman. He was 53 at the time and employed as a truck mechanic. His claim is primarily for mental distress, depression and PTSD. Disputes arose between Mr. Cook and RBC concerning his entitlement to accident benefits, and Mr. Cook applied for arbitration at FSCO. The arbitration hearing is scheduled to commence March 9, 2015.
Mr. Cook has filed a motion requesting an interim Order for funding of catastrophic (CAT) impairment reports in the amount of $12,960.00 and his expenses of the motion.
Should RBC be required to pay all or a part of the costs of a catastrophic impairment assessment?
Should RBC pay some or all of Mr. Cook’s expenses of this motion?
RBC is not required to pay all or part of the costs of a catastrophic impairment assessment. The Applicant’s motion for an interim order is dismissed.
There is no order as to expenses.
In January 2013, Mr. Cook submitted an OCF-18 treatment plan dated January 10, 2013 for a catastrophic impairment determination evaluation. RBC denied the treatment plan on the basis that Mr. Cook had not submitted an OCF-19. The writer of the letter also noted that such an application cannot be submitted until two years have elapsed since the accident. At that point, RBC had not paid out the $50,000 maximum in medical and rehabilitation benefits as set out in the Schedule.
Mr. Cook’s family doctor submitted and OCF-19 in July of 2013. RBC arranged a CAT insurer assessment in November 2013. It found Mr. Cook to have 7% whole Person Impairment and mild impairment in all four spheres of functioning. It concluded he was not catastrophically impaired. Mr. Cook seeks funding for a rebuttal of the CAT assessment. RBC argues that it is unreasonable to require them to pay for the second assessment as it has paid out the maximum medical and rehab benefits required in the schedule, and, Mr. Cook has the financial means to pay for the assessment.
The Arbitrator addressed the question of whether the CAT reassessment is an interim benefit or an interim expense. He noted that Arbitrators can make interim orders pending final orders. He then reviewed the facts of the case and the law. Upon review of the guiding principles for the awarding of an interim benefit, it became obvious that the factors to be considered in awarding interim benefits are ill-suited to the consideration of a request such as the one made in this motion. Mr. Cook’s request is for a one-time payment, not for ongoing relief from financial deprivation, as would be the case in a request for interim income replacement benefits, or for ongoing payment for personal assistance, such as for interim attendant care or housekeeping benefits. Its objective is to provide Mr. Cook with sufficient evidence to rebut the RBC CAT assessment. Mr. Cook alleges he does not have the financial resources to pay for such an assessment. On the basis of the review the Arbitrator found that rebuttal CAT assessment is most properly characterized as an expense.
Reviewing the leading cases in determining whether interim expenses ought to be awarded the Arbitrator considered the following:
The application must raise a bona fide issue;
The expenses sought are reasonable and necessary for the conduct of the arbitration; and
The applicant is unable to carry the expenses of the arbitration.
The Arbitrator determined from documents filed that Mr. Cook suffers from depression and PTSD and on that basis there is a bona fide issue as to CAT impairment. The Arbitrator then determined the costs of a second CAT assessment, one that is approximately as thorough as the first, is a reasonable and necessary expense for the conduct of the arbitration hearing. The Arbitrator then found that Mr. Cook has extremely limited financial resources and that he is not in the position to fund the full cost of the proposed assessment.
Unfortunately for Mr. Cook, the Arbitrator indicated that although all three criteria had been met the Schedule is clear in section 18(30 that
18(3) The sum of the medical and rehabilitation benefits paid in respect of an insured person who is not subject to the financial limit in subsection (1) shall not exceed, for any one accident,
if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000. O. Reg. 34/10, s. 18 (3).
It is uncontested that RBC paid over $50,000 in medical and rehabilitation benefits to Mr. Cook. Section 18(5) places Mr. Cook’s claim into that category, by a legislative clause that is clearly meant to limit insurer liability for the cost of both treatment and assessments in non-catastrophic cases. In doing so, the Legislature did not provide for situations such as Mr. Cook’s, where the very question of whether he can claim more than the $50,000 in medical and rehabilitation benefits hangs in the balance. A voluntary payment by RBC of a sum towards the cost of Mr. Cook’s rebuttal CAT assessment would help to banish the state of inertia in which this matter presently stands. In the Arbitrator’s view, it goes against the remedial nature of this legislative scheme to leave matters at a standstill.
However, while this is a situation where an award of interim expenses is warranted, the Arbitrator is prevented from doing so by subsection 18(3) of the Schedule. To order otherwise would be to defy the legislated limits set out in subsection 18(3). Mr. Cook’s request for an order for the interim payment of an expense is denied.