COVID-19 UPDATE  

Interim benefits ordered where insured establishes compelling case.

May 19, 2013, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Before:  Anne Sone

Date of Decision: December 24, 2012

 

Issues:

 

T. S. was injured in a motor vehicle accident on October 31, 2011. He applied for and received statutory accident benefits from Intact Insurance Company,  payable under the Schedule. The parties were unable to resolve their disputes through mediation, and T. S. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act. His Application for Arbitration claims benefits for attendant care, medical treatment and rehabilitation, as well as interest, expenses and a special award.

 

Prior to a pre-hearing taking place in this case, T. S. brought a motion, pursuant to section 67 of the Dispute Resolution Practice Code — Fourth Edition, for interim benefits to be paid to him pending the resolution of his dispute with Intact.

 

Issues:

 

The issues on this motion are:

 

  1. Is T. S. entitled to the following interim benefits pursuant to section 279(4.1) of the Insurance Act?

 

Attendant Care:

 

  • Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service2 for T. S.’s use
  • Past attendant care benefits at the rate of $4,923.88 per month, less amounts paid by Intact
  • Housing:
  • $3,995 for a treatment plan dated July 5, 2012, prepared by EP, occupational therapist, for housing search services for T. S. (These two housing treatment plans were requested to provide suitable and stable housing to T. S. In July 2012, Dr. Ladd, T. S.’s treating psychiatrist, confirmed that this was important to T. S.’s rehabilitation and to minimize the risk of self-harm or suicide)
  • $15,600 for a treatment plan dated July 12, 2012, prepared by EP, occupational therapist, for a one-year lease of a suitable apartment for T. S.
  • Assistive Devices:
  • Cell phone and cell phone service for T. S. (Exact amount depends on when T. S. was provided with a cell phone)
  • Reasonable amount for furnishing an apartment for T. S. (EP, occupational therapist, sought payment of $7,345 fora Home Accessibility Report dated August 17, 2012, prepared by Adapt-Able. It evaluated T. S.’s prior residence, and proposed modifications. This is an item that is still in dispute in the main hearing in this matter. It is not being claimed as an interim benefit)

 

Result:

 

  1. Intact agrees to pay T. S. interim benefits as set out below.

 

Attendant Care:

  1. Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service for T. S.’s use

 

Housing:

  1. $3,995 for a treatment plan dated July 5, 2012, prepared by EP, occupational therapist, for housing search services for T. S.
  2. $15,600 for a treatment plan dated July 12, 2012, prepared by EP, occupational therapist, for a one-year lease of a suitable apartment for T. S.

 

Assistive Devices:

 

  1. Cell phone and cell phone service for T. S.
  2. Reasonable amount for furnishing an apartment for T. S., at an agreed upon cost.

 

  1. The Arbitrator declined to exercise his discretion to order interim benefits for the past attendant care benefit.

 

EVIDENCE AND ANALYSIS:

 

Background:

 

On October 31, 2011, T. S., while a pedestrian, was struck by a dump truck, and incurred, among other things, a serious brain injury and numerous fractures. T. S. was 42 years old at the time, and maintains that he continues to suffer from physical, cognitive and emotional impairments as a result of the accident.

 

It is not disputed that he had mental health and financial issues prior to the accident. Intact submits that there was a suicide note, and that this accident was a suicide attempt.

 

Matters upon which the Parties have Agreed:

 

During the interim benefits hearing (and pending the outcome of the main hearing), Intact agreed to provide the following interim benefits to T. S.:

 

Attendant Care:

•             Ongoing attendant care benefits at the rate of $4,923.88 per month, which includes providing a cell phone and cell phone service for T. S.’s use

 

Housing:

•             $3,995 for a treatment plan dated July 5, 2012, prepared by EP, occupational therapist, for housing search services for T. S.

•             $15,600 for a treatment plan dated July 12, 2012, prepared by EP, occupational therapist, for a one-year lease of a suitable apartment for T. S.

 

Assistive Devices:

•             Cell phone and cell phone service for T. S.

•             Reasonable amount for furnishing an apartment for T. S., at an agreed upon cost.

 

Issue which remains Outstanding:

 

The parties confirmed that past attendant care benefits at the rate of $4,923.88 per month,  less amounts paid by Intact, were still in dispute in the interim benefits hearing.

 

Statutory Framework:

 

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

 

Case law:

 

Although arbitrators have the discretionary authority to order interim benefits, these awards are not made lightly. As Senior Arbitrator Rotter stated in Cripps and AXA Insurance (Canada):

 

It is settled law that interim benefits are not ordered as a matter of course. Normally, arbitral orders are made only after the evidence and positions of the parties have been fully and thoroughly canvassed at an arbitration hearing. However, in certain cases, interim benefits can be ordered before a full hearing on the merits of the claim. The evidence considered on interim applications is usually less than complete. The arbitrator hearing the motion for interim benefits is required to deal with it in a summary fashion, and to make an order as expeditiously as possible. That order may be reversed or overturned after a full hearing of the matter. [emphasis in original]

 

She also stated that

 “[i]n determining whether interim benefits should be awarded, two major criteria have been identified:

  1. the merits of the case for entitlement
  2. the existence of an element of necessity or urgency

 

The interpretation of these criteria has evolved over time, especially regarding the merits of the case for entitlement.

 

In Nguyen and State Farm Mutual Automobile Insurance Company,  Arbitrator Wilson extensively reviewed the case law regarding interim benefits motions, as distinguished from interim injunctions. He considered whether or not the applicant had demonstrated a compelling case, and asserted that the approach must be flexible.

 

In terms of the existence of an element of necessity or urgency, he commented on providing a “fair and adequate income stream” to accident victims. At page 11, he states that:

 

If the hearing is some time distant, and the need is present, an interim order may well be appropriate. There is no evidence however that it [an element of necessity or urgency] should be a rigid pre-condition to an order.

 

In other words, it is a factor to be considered when deciding these sorts of cases.

 

In Ananthamoorthy and TD Home and Auto Insurance Company, Arbitrator Feldman explored the different “tests” and schools of thought that have developed at the Commission. After reviewing the criteria to consider on these motions, he concluded that:

 

… arbitrators are beginning to return to a consideration of whether or not the applicant has demonstrated a compelling reason or reasons for the granting of interim benefits. The reasons may vary from case to case and the approach adopted must be flexible.

 

Accordingly, Arbitrator Sone considered whether there is a compelling case (in terms of the merits, urgency or other factors), to exercise discretion to order interim benefits before a full hearing on the merits of this application.

 

Analysis and Conclusion regarding Past Attendant Care:

 

Applicant’s Submissions:

 

  1. T. S. submits that Intact’s occupational therapist initially assessed T. S.’s attendant care needs at $330.31 per month.

 

  1. T. S.’s occupational therapist assessed his attendant care needs at $4,923.88 per month, provided a cell telephone and service were funded.

 

On September 20, 2012, T. S. received an insurer’s examination report from Judy Phillips, occupational therapist. Ms. Phillips did not complete a Form 1, on the basis that she was reserving determining the need for supervisory care until a psychiatric assessment of T. S. was provided to her. She did assess in all other areas, and her evaluation of T. S.’s attendant care needs totalled approximately $3,643.02 per month.

 

Even without a psychiatric assessment, Intact’s own report indicates much more than the $330.31 per month it originally paid. T. S. submits that at a minimum, the past obligation is that amount. As indicated in Zurich North America Canada and Stargratt, even if an expense is not incurred, the insurer should be obligated to pay it.

 

Insurer’s Submissions:

 

Intact submits that there is no evidence that anyone is waiting to be paid. Unless T. S. can demonstrate urgency, past attendant care benefits are not the appropriate subject of an interim benefits motion in this case.

 

Conclusion:

 

As indicated above, the parties resolved amongst themselves the issues relating to ongoing attendant care, housing and assistive devices.

 

With regards to the past attendant care benefit, the Arbitrator does not condone Intact’s failure to pay an attendant care benefit that its own occupational therapist recommended. However, there is no indication that T. S. has had any attendant care since the accident. There is also no evidence as to why this occurred. (He has submitted that his mother will be relocating from Alberta to provide future attendant care.)

 

Given the summary nature of the motion, the merits of T. S.’s case for a past attendant care benefit are not clear to me. There are too many pieces missing. The Arbitrator found that T. S. has not satisfied the onus upon him to demonstrate a compelling case for payment of a past attendant care benefit, pending the hearing, as required on an interim benefits motion.

 

In addition, the Arbitrator did not find any factor of urgency, when there is no one waiting to be paid. This benefit can be more appropriately dealt with in the context of an arbitration hearing with a full evidentiary record.

Posted under Accident Benefit News, Automobile Accident Benefits, Brain Injury, Car Accidents, Catastrophic Injury, Pedestrian Accidents, Treatment, Truck Accidents

View All Posts

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

Practice Areas

  1. Car accidents
  2. Motorcycle accidents
  3. Automobile accident benefits
  4. Catastrophic injury
  5. Brain or Head injury
  6. Paraplegia and Quadriplegia
  7. Spinal cord injury
  8. Drunk driving accidents
  9. Concussion syndrome
  10. Post Traumatic Stress Disorder
  11. Business Interruption Insurance
  12. Birth Trauma Injury
  1. Wrongful death
  2. Bicycle accidents
  3. Disability insurance claims
  4. Slip and fall injury
  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

Personal Injury Blog

Aug 04, 2020
Post-Concussion Treatment is Extremely Important in Suicide Prevention
Jul 30, 2020
Being the loved one or care giver of someone with TBI can be very challenging
Jul 28, 2020
Children who suffer concussions are susceptible to behavioral and emotional symptoms
Jul 23, 2020
Long-Term Care Homes and Hospitals Relax Visitor Restrictions
Jul 21, 2020
E-bike Popularity Continues to Grow – Remember They are Subject to Regulation
Jul 18, 2020
Al Fresco Dining Here to Stay, but Risk Needs to Be Managed

More Personal Injury Articles » 
Review our services

Connect with us

Facebook Twitter Linkedin Youtube Google