April 18, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Susan Sapin
Date of Decision: November 13, 2014
DECISION ON A MOTION FOR INTERIM BENEFITS
Carole Boyd suffered serious injuries to her left shoulder and arm on April 20, 2011, when the London Transit bus in which she was riding stopped suddenly, causing her to be thrown from her wheelchair. She applied for and received statutory accident benefits, including attendant care and housekeeping/home maintenance benefits, from St. Paul Fire & Marine. St. Paul terminated attendant care and housekeeping benefits after 104 weeks on the basis that Mrs. Boyd did not suffer a catastrophic impairment as a result of the accident, and so was not entitled to those benefits beyond 104 weeks. However, at Mrs. Boyd’s request, St. Paul did agree to continue paying attendant care benefits for an extra three months up to August 31, 2013, on the understanding that Mrs. Boyd would submit an Application for Determination of Catastrophic Impairment (OCF-19) by that time.
St. Paul received Mrs. Boyd’s OCF-19 on June 13, 2013. Mrs. Boyd claims that her accident-related impairments qualify as catastrophic under the Schedule, because they have resulted in the ‘total and permanent loss of use’ of her left arm. St. Paul conducted independent medical assessments (IEs) of its own which determined that she did not suffer a catastrophic impairment as a result of the accident, nor an impairment or combination of impairments that results in 50% or more impairment of the whole person. On that basis, St. Paul confirmed its refusal to pay attendant care and housekeeping/home maintenance expenses beyond 104 weeks, and Mrs. Boyd applied for mediation and arbitration at the FSCO.
Mrs. Boyd has brought this motion pursuant to Rule 67 of the Dispute Resolution Practice Code — Fourth Edition for interim attendant care and housekeeping/home maintenance expenses pending a decision by an arbitrator about whether she meets the test for catastrophic impairment under s. 3(2)(b).
The issue on this motion is:
Is Mrs. Boyd entitled to interim benefits pursuant to the Insurance Act?
Mrs. Boyd is entitled to interim benefits of $1,117.25 from September 25, 2014, until a final decision is rendered or the matter is otherwise resolved.
EVIDENCE AND ANALYSIS:
The Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter, as does the Dispute Resolution Practice Code.
St. Paul submits that Mrs. Boyd is precluded from bringing this motion for interim attendant care benefits because the Schedule only requires an insurer to pay interim benefits pending determination of catastrophic impairment if the insured person makes an application for the determination within 104 weeks of the accident. As Mrs. Boyd’s OCF-19 was made 109 weeks after the accident, she should not be entitled to an interim order for the payment of attendant care benefits, despite s. 279(4.1) of the Act.
St. Paul maintains that to allow such a motion would undermine the ongoing efforts of the legislature to amend the Schedule to provide - and restrict - interim attendant care benefits to only insured persons with the most serious injuries, such as traumatic brain injuries or major physical impairments, as per the recommendations of the Final Report of the Catastrophic Impairment Expert Panel to the Superintendent. Furthermore, such a motion, if allowed, would lead to an increase in the number of applications for interim benefits pending determination of catastrophic impairment.
The Arbitrator found these arguments to be without merit. A four-year old report whose recommendations have yet to be – and may never be – implemented in their 2011 form, is hardly persuasive. Furthermore, there is nothing in the language of s. 45(4) of the Schedule that derogates from an arbitrator’s powers to order interim relief under s. 279(4.1) of the Act or that precludes the ordering of interim attendant care in cases where catastrophic impairment is in issue. Despite the lack of any case directly on that particular point, there is ample, well-established jurisprudence dealing with the purpose of interim relief in general and the powers of arbitrators to order it in appropriate circumstances, reflecting a number of important principles to be considered when granting interlocutory relief in administrative proceedings.
Upon reviewing the law and facts of the case the Arbitrator found it is generally accepted by adjudicators in interim benefits cases that the onus is on the applicant to establish a prima facie case for entitlement, on a balance of probabilities. Other potentially relevant factors to take into account would be the strength of the claim versus the strength of the defence; potential success; the legislative purpose of the Schedule, which include consumer protection and timely access to benefits at reasonable cost; and the insurer’s failure to respect any of its provisions — with no single element as a pre-condition to entitlement. The most helpful approach to the question of whether interim benefits should be awarded is to consider all of the above factors in the context of the case as a whole, bearing in mind the central issue in all cases for interim relief - assessing the relative risk of harm to the parties from granting or withholding interlocutory relief.
The Arbitrator considered that Mrs. Boyd presented sufficient evidence, that her case for catastrophic impairment has a reasonable chance of success at arbitration. There is no dispute that Mrs. Boyd’s accident injuries and resulting impairment are serious and permanent. The medical experts on both sides agree that Mrs. Boyd’s prognosis is poor and that her condition will likely worsen due to arthritis. The Arbitrator ruled that the question of whether Mrs. Boyd is catastrophically impaired is a question to be determined at a full hearing.
After a full review of Mrs. Boyd’s medical records and assessments, the Arbitrator found that if Mrs. Boyd were required to pay for the full amount of care she requires because of the accident, at a conservative estimate of $1,117.25, she would be left with virtually no disposable income. Without the additional care she needs Mrs. Boyd faces the very real possibility of an irreversible move to a long term care assisted living facility. On this basis the Arbitrator ruled that the risk of harm to Mrs. Boyd outweighs the risk of harm faced by St. Paul in having to pay for attendant care on an interim basis, and ordered St. Paul pay Mrs. Boyd attendant care benefits of $1,117.25 from September 25, 2014, until a final decision is rendered or the matter otherwise resolved.