|
ACCIDENT BENEFITS NEWSLETTER - DECEMBER 2004 Catherine Zingg
PLEASE NOTE THAT NEW DISPUTE RESOLUTION FORMS ARE IN EFFECT ON DECEMBER 1, 2005. THE OLD ONES WILL BE ACCEPTED UNTIL MARCH 1, 2004. THEY ARE AS FOLLOWS: Application for Mediation (Form A) Note that Form P is new and will be required if the injured person is a minor or is mentally incapable. A number of new forms were also introduced with the reforms on October 1, 2003. To make sure that
you are using these forms (such as the new OCFs 1, 2, 3, 4, 5, 6, 9, 10, 11, 13, 14, 17, 18, 19, 20, 21,
22, 23, and 24) go to www.fsco.gov.on.ca. Click on “Insurance” which is the purple bar to the left of
your screen. Click “Auto Insurance”. Scroll down to the bulletin entitled “Implementing Bill 198: New
In Desbiens and Mordini (2004), Court File No.: 00-CV-185811, S.C.J., the plaintiff was rendered a paraplegic in 1986 when he fell off a roof in the course of his employment. On November 8, 1999 he was struck by a motor vehicle while operating his wheelchair on a sidewalk. Liability was admitted by the defendants and it was acknowledged that Mr. Desbiens met the threshold requirement contained in s.267.5(5) of the Insurance Act. Although this is a tort claim and the s.267.5(4) of the Insurance Act which was considered in this decision, has since been repealed, as has the definition of catastrophic impairment in s.5(1) of O Reg. 461/96, the decision is worth reviewing because the definition of catastrophic impairment that was considered is similar to that found in the S.A.B.S. /96. Under the legislation that applied to the case, healthcare expenses were not recoverable unless the injured person had sustained a “catastrophic impairment”. The relevant section of O Reg. 461/96, s.5(1) stated:
Psychological Impairments Following the motor vehicle accident, Mr. Desbiens experienced depression and anxiety. The defendants submitted that since psychological impairments are rated qualitatively (mild, moderate, marked or extreme), rather then by percentages, there is no mechanism in the Guides for combining them with the percentage of impairments derived from the organ system chapters to calculate the percentage impairment of the whole person required by clause (f) and therefore it is not “ in accordance” with the Guides to do so (par. 214). Judge Spegiel rejected this approach, stating: Fourthly, there is nothing in the text of the Regulation that suggests that a combination of physiological and psychological impairments is not permitted. Indeed clause (f) permits any combination of impairments, both physical and psychological. The only requirement is that these impairments must result in 55% WPI “in accordance with” the Guides. While the definition in clause (g) does not include mild or moderate psychological impairments there is nothing in the Regulation that prohibits such impairments from being considered under clause (f). If the intention were to exclude psychological impairments from clause (f), the insertion of the word “physiological” before the word “impairments” would easily have achieved that purpose (par. 242). The court went on to find that it was “in accordance with the Guides to assign percentages to Mr. Desbiens’ psychological impairments and to combine them with his physical impairments to determine whether he met the definition of “catastrophic impairment” under clause (f)” (p. 252). s.15 - Charter Judge Spiegel was of the opinion that a failure to include psychological impairments would be to discriminate against persons who have a mental disability. He stated: In my view, to deprive innocent victims of motor vehicle accidents the right to recover much needed healthcare expenses because their psychological impairments cannot be combined with their physical impairments considering their overall WPI (whole person impairment) is unjust. Moreover, it is inconsistent with the principles and norms of s.15 of the Charter which provides:15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (par. 258). Analysis Judge Spiegel found that the appropriate quantification of Mr. Desbiens’ psychological impairments was 25% WPI. As a result of the car accident, Mr. Desbiens suffered a spiral fracture of the right femur with mild shortening. Mr. Desbiens also, he experienced constant severe daily headaches and dizziness. The judge attributed 40% whole person impairment with respect to the injuries to the musculoskeletal system which, combined with the 25% rating for psychological impairments resulted in an overall WPI of 55% which satisfied the requirements of clause (f). Interestingly, Mr. Desbiens had been awarded $100,000 in medical and rehabilitation benefits under the SABS, which would suggest that he had not been found catastrophic under the S.A.B.S. This amount was deducted from the tort award, along with the $59,542 paid in attendant care under the S.A.B.S. and $10,400 in housekeeping.
IH.I and Aviva Canada Inc., A02-001766. The applicant was found to be catastrophically impaired by a DAC. She advanced a claim for 24 hour attendant care services, based on impairment of her cognitive capacity and behavioural skills such that she required 24 hour attendant care services to ensure her personal safety. A preliminary issue hearing was held to determine whether Ms. H.I. had the capacity to instruct counsel and/or represent herself and make decisions with regard to the conduct of a complex arbitration proceeding. The second issue to be determined was whether Ms. H.I’s “facilitator”, Mrs. Champaigne, could participate in the hearing. While the question of capacity was initially raised by the insurer, the decision to formally inquire into Ms. H. I’s status was the arbitrator’s, as an adjudicator acting pursuant to Rule 10 of the Practice Code (p. 10). Arbitrator Wilson found that Ms. H. I. was capable to instruct counsel and to carry on with her arbitration and did not require a litigation guardian in accordance with Rule 10 of the Practice Code. Arbitrator Wilson acknowledged that there was a “logical tension between Ms. H. I’s assertion in the context of her substantive claim that she requires constant supervision to control impulsivity and to avoid danger to herself, and her concurrent assertion that she was fully able to make decisions and to appreciate the consequences of those decisions, in the context of the arbitration. However, Dr. Kaminska, a qualified capacity assessor, under the Substitute Decisions Act had found that Ms. H. I. met the decision making criteria of the SDA, specifically because of the support network available to her in the decision making process. Based on the evidence of Ms. H.I’s conduct at the preliminary issue hearing, the capacity assessment issued by Kaminska, and the evidence of witnesses at the preliminary hearing, Arbitrator Wilson found that Ms. H.I. had shown an ability to understand the nature of the process, the necessity for making decisions, and an appreciation that consequences follow from such decisions or lack of decision (p.11). Ms. Champaigne was not allowed to appear at the hearing as a “facilitator”, agent, representative, translator or party. She was not allowed to appear as a “support person” without a specific order by the presiding arbitrator. Ms. Champaigne had a financial interest in the outcome of the arbitration, and testified that she expected to be paid $100,000 for services rendered to Ms. H.I. Arbitrator Wilson found that this “expectation” constituted a “financial benefit and connection with the representation of the party” as defined by Regulation 664. Accordingly, Ms. Champaigne would be required to register as a S.A.B.S. agent and obtain Errors and Omissions Insurance. Ms. Champaigne had not done so. Ms. H.I had been found to be catastrophically impaired by a CAT DAC if she was to be represented at an arbitration hearing, she would have to be represented by a lawyer. Furthermore, even if Ms. Champaigne were to complete her registration process, she would still be barred from appearing as a representative in the matter since she would be called as a witness with respect to the attendant care claim. Ms. Champaigne filed a “Notice of Constitutional Question” pursuant to Rule 80 of the Practice Code. The question identified related any restriction on Mrs. Champaigne’s role as a facilitator, to the protected right to interpretation identified by the Supreme Court of Canada in R. v. Tran (1994), 1992 CCC 3rd 218 S.C.C. That decision held that a right to an interpreter was guaranteed by s. 14 of the Charter. Arbitrator Wilson found that a party has a right to be able to understand a proceeding and to communicate with a tribunal (p.14). However, he rejected the submission that Ms. Champaigne should be allowed to participate as a translator, stating: In this matter, the role of Ms. Champaigne does not lend itself to characterization as simple translation. In addition to helping Ms. H.I. communicate through the rendering of her thoughts and basic English, Ms. Champaigne has been noted to intervene with the expression of her own impressions, comments and interjections that appear to draw on her own internal thoughts rather then something being expressed by Ms. H. I.(p.14).
CGU and Irving, P03-00022, November 29, 2004 - Mr. Irving required 72 stitches in his face and eye surgery after being struck by a beer bottle thrown from a passing pickup truck. Arbitrator Miller held that he had been injured in an “accident” within the meaning of the Schedule. Director’s Delegate Makepeace, however, allowed the insurer’s appeal, stating: In my view, the arbitrator erred in relying on the “significant contribution” test to decide whether the use or operation of an automobile directly caused Mr. Irving’s impairment. The significant (or material) contribution test applies where there are multiple causes of impairment, only some of which are accident related. It has no application in deciding the initial coverage question - whether use or operation of an automobile directly caused an impairment (p.12). The Director’s Delegate found that the arbitrator had spent little time on the purpose test. She commented that properly framing the “purpose” question is important. She further remarked that it is not enough that the assailant is driving an automobile at the time of the injury (p.18). It was found that the proper question was, “is throwing a beer bottle at a cyclist an ordinary and well known use of an automobile?” (p.18). Ultimately, it was found that Mr. Irving was the victim of an assault, as that was the dominant feature of the incident. TTC and Wootton, P04-00004, November 2, 2004 - The insurer appealed a decision in which Arbitrator Wilson had found that Ms. Wootton was injured in a “accident” as defined in s.2 of the SABS /96. Ms. Wootton had said that she fell as she was attempting to board a bus. The TTC submitted that the arbitrator had erred in law in reversing the onus of proof and misapprehending critical evidence. Director Draper allowed the appeal and ordered that the case be tried before another arbitrator. In his reasons he stated:
In State Farm and Sivananthan, P01-00009, November 18, 2004. Tthe insurer appealed from a decisions in which the applicant was awarded IRBs beyond the post 104 week period. The basis of the appeal was that the arbitrator had erred in law by accepting certain expert testimony. The insurer argued that “without any medical training at all, Ms. Leary concluded that the respondent’s physical and psychological conditions were a barrier to her return to work” (p.4). It further submitted that the arbitrator “gave way to evidence that was outside the scope of the vocational evaluators training and expertise- that is a medical opinion” (p.4). Director Draper dismissed the appeal, stating: I find nothing inherently wrong in this analysis. The first part is a factual issue whether Ms. Leary had the necessary background to be considered an expert in vocational assessments. That was within the arbitrator’s purview and she had evidence upon which to make that finding. The second part expresses the principle that a vocational expert may consider the symptoms of an applicant in determining whether he or she can perform the work in question. I find that principle is correct in law and that the insurer’s position is too narrow (p.7). In determining whether an applicant can perform a job, the vocational expert has to consider the symptoms and whether that prevents the applicant from performing that particular job. This consideration does not mean the expert is rendering a medical opinion. It is up to medical experts and, ultimately, the arbitrator to determine the legitimacy of those symptoms (p.7). HAPPY HOLIDAYS AND HAPPY NEW YEAR ! |