October 24, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Adjudicator: Alan Mervin
Date of Decision: January 26, 2015
DECISION ON A MOTION FOR INTERIM BENEFITS
Douglas Relf was struck by a combine tractor while driving his motorcycle on August 4, 2010, allegedly suffering a traumatic brain injury and other personal injuries as a result of the collision. He applied for and received statutory accident benefits from Primmum, but the parties were unable to resolve their disputes through mediation and Mr. Relf applied for arbitration at the Financial Services Commission of Ontario. Mr. Relf has brought a motion for interim benefits to be paid to him pending the resolution of his dispute with Primmum.
The issues on this motion are:
Is Mr. Relf entitled to interim benefit payments for Attendant care and Medical and Rehabilitation expenses pursuant to Section 279(4.1) of the Insurance Act in excess of the statutory maximums for non-catastrophic injuries prior to a determination as to whether or not the Applicant has suffered a catastrophic impairment?
Mr. Relf is not entitled to interim benefits for attendant care or Medical and Rehabilitation expenses.
Mr. Relf seeks interim attendant care and rehabilitation benefits on an ongoing basis, pending the outcome of his arbitration hearing. Mr. Relf will seek a determination that he has suffered a catastrophic impairment at that hearing.
He was assessed as requiring 24-hour attendant care benefits, and required funding for medical/rehabilitation services. He was paid attendant care benefits at the maximum monthly rate of $6,000.00 until May 2012, when he had exhausted the policy limits of his non catastrophic attendant care benefit. The policy limits for his rehabilitation and medical services at non-catastrophic levels was exhausted in August 2012. The issue of whether Mr. Relf has suffered a catastrophic impairment has not yet been determined. However, Mr. Relf is seeking payment of these benefits in excess of the non-catastrophic limits on an interim basis pending a determination that he has suffered a catastrophic impairment.
For the reasons that follow, the Arbitrator concluded that since the non-catastrophic policy limits are exhausted he had no jurisdiction to order payment of interim benefits. He also concluded that Mr. Relf does not meet the test for entitlement to interim benefits.
The Arbitrator ruled he had no jurisdiction to order interim benefits as there is no termination or denial of benefits in the case. There is no authority that counsel has been able to produce to suggest that interim benefits can be ordered where the issue to be considered is whether or not the Applicant has suffered a catastrophic impairment, and the non-catastrophic policy limits are exhausted.
The payment limits for non-catastrophic injuries are set out in statute. In the absence of statutory authority to award amounts over the non-catastrophic limits without a finding of catastrophic impairment having been made, and in the absence of any binding or persuasive authority in cases where such an order has been made, the Arbitrator agreed with the Primmum that he did not have jurisdiction to make such an order.
MR RELF DOES NOT MEET THE ENTITLEMENT TEST
A review of previous rulings has found that an arbitrator is open to award interim benefits where, based on the evidence before the Commission, the applicant would ultimately be successful in his claim for catastrophic injury. Where a review of evidence leads to an ambiguous result (the applicant is not likely to be successful) interim benefits should not be ordered.
After a summary review of the evidence the Arbitrator determined an ambiguous result in which he was not certain Mr. Relf would be successful in establishing he sustained a catastrophic injury.