ACCIDENT BENEFITS NEWSLETTER - NOVEMBER 2004

Catherine Zingg

In J.C. and Progressive Casualty Insurance Company of Canada, AO3-000290, September 24, 2004, the applicant was awarded income replacement benefits pursuant to s.5(2)(b) at the rate of $275.30 per week. On June 14, 1997, the applicant was a passenger in a vehicle that was T-boned. He was taken to the hospital following the accident, but decided he did not need treatment after waiting several hours in the emergency room. The following day, he fell asleep in his boss’s truck at work, where he was found in a lethargic disoriented state. He was again taken to the hospital, where it was found that he had sustained a fractured skull. Weekly income benefits were paid from June 21, 1997 to November 19, 1997. A letter was sent to the applicant dated October 30, 1997, advising him that he had the right to be assessed by a DAC but since no reply was made the benefits were terminated. A further application for accident benefits dated April 17, 2001, was submitted. The insurer did not raise a limitation defence, conceding that it had not met the notice of benefit refusal requirements set out in Smith v. Co-Operators (2002) 2 S.C.R. 129. The insurer argued however, that the applicant’s childhood abuse, learning and cognitive problems and his pre-accident left clavicle fractures were the cause of his present problems as opposed to the accident. Arbitrator Allen stated that since she had received no definitive expert evidence on the extent to which any early learning cognitive problems might have affected the applicant’s abilities later in his life she made no finding on the matter. Similarly, there was no medical opinion as to whether the applicant’s previous clavicle fractures contributed to his chronic pain condition.

After a careful review of the evidence, Arbitrator Allen stated that the applicant met the threshold criteria in establishing that he sustained cognitive, psychological and physical impairments as a result of the accident. At the time of the accident the applicant was 18 years of age and had completed grade 11. His employment history consisted of a series of part-time jobs, doing general labour and farm chores, working at a golf course and at a factory making paddles. (p.33). He had also completed several months of training as an auto body repairer and was working as an auto body worker at the time he was injured. Due to his head injury, he was unable to recall the details of his tasks. The arbitrator found that it would be unreasonable and unfair for the applicant’s entitlement to income replacement benefits to be adversely affected because a memory condition caused by the accident presented a barrier to him providing evidence about the essential tasks of his employment (p.30). The National Occupational Classification was referred to in order to determine whether the applicant would be able to undertake such work.

Interest was suspended between November 20, 1997 to June 5, 2001 during which time the applicant did not have contact with Progressive. It was found that Progressive had properly terminated the applicant’s income replacement benefits on November 19, 1997, based on the medical opinions of the applicant’s family doctor, a neurologist and the results of diagnostic testing (p.36). Progressive’s argument that it was disadvantaged in the circumstances, by not having the opportunity to follow through with medical assessments and rehabilitation and the evaluation of his employment situation during this time period was accepted. A special award of $5,000 was made, however, because it was found that Progressive should have reinstated benefits in November 2003 when it received the Neuropsychological assessment from Dr. Kiss.

Butina and Liberty Mutual Insurance Company, A03-001148, September 29, 2004 - The applicant, who had been injured in an accident on June 30, 2001, was awarded ongoing income replacement benefits. At the time of the accident she was employed full time as an accountant and was taking night course and was about half way towards a degree as a certified general accountant (p.2). Ms. Butina was struck from behind with sufficient force to cause a chain reaction collision. She suffered soft tissue injuries, but also suffered from blackouts following the accident. One neurologist found that temporal lobe seizures had to be considered and prescribed an anti-convulsant agent. Ms. Butina’s driver’s license was also suspended because of her blackouts. The insurer argued that Ms. Butina was not motivated to return to work. Arbitrator Renahan, however, rejected this assertion and found that her sustained attempts to return to work were honest and that she was substantially disabled from preforming the essential tasks of her employment. It was also found that the clerical jobs identified by Liberty were not suitable in terms of status or challenge and were therefore not suitable having regard to Ms. Butina’s “experience” as required by the post 104 test. (p.4).

Crocco and Pilot Insurance Company, A03-001558, September 10, 2004 - The applicant was denied payment of $2,500 for the cost of an examination conducted by Dr. David Symington. Arbitrator Miller stated that the burden of proof rested on Mr. Crocco to show on a balance of probabilities that the assessment by Dr. Symington was a reasonable expense incurred for the purpose of the Regulation. Mr. Crocco’s counsel had requested the examination by Dr. Symington, a physiatrist . In the referral letter, Dr. Symington was asked to provide his opinion as to whether Mr. Crocco was “able to complete any occupation for which he was reasonably suited by education, training and experience”. The arbitrator found that Dr. Symington was being asked to comment on Mr. Crocco’s employability and for no other purpose (p.8). Moreover, it was found that there were no outstanding benefits in issue at the time that the medical legal report was requested. Mr. Crocco had undergone a number of other assessments on which Pilot relied in determining the payment of his benefits.

In Cheraghi-Shoi and Zurich North America Canada, A03-000148, September 27, 2004 - Arbitrator Allen held that Zurich was required to produce information as to whether or not it conducted surveillance upon which it did not intend to rely. In her reasons, Arbitrator Allen stated:

I find that Zurich is required to produce information as to whether or not it conducted surveillance upon which it does not intend to rely. I find this information might be relevant to the issues in dispute. As well, I can see no prejudice that can result to Zurich from producing this information, since according to Rule 40 of the Code, the arbitrator will not receive the surveillance if Zurich decides not to produce any of it. I find the applicant is entitled to request that an adverse inference be drawn by the arbitrator. However, because there are any number of reasons an insurer may choose not to rely on surveillance it has conducted, the information requested by the applicant might be of limited assistance to his case. (p.4)

Rumak and Personal Insurance Company of Canada, A01-000065, October 7, 2004 - An earlier arbitration decision held that the applicant, who was 16 years old at the time of the accident and suffered a catastrophic injury was entitled to receive ongoing income replacement benefits pursuant to s.5(2)(b). In the decision, Arbitrator Miller was critical of the disability DAC upon which the insurer relied in terminating benefits. The evidence disclosed that, “there had been no consensus meeting by the DAC assessors, nor did the DAC assessors see or sign the consensus report” (p.36). It was held that Mr. Rumak was entitled to a substantial special award as the Personal not only “acted unreasonably when it terminated Mr. Rumak’s income replacement benefit on September 26, 2000, but that in the face of cogent, reliable medical evidence which supported Mr. Rumak’s position, Personal continued to act in a stubborn and inflexible manner in unreasonably withholding this benefit until the time of the arbitration decision on November 5, 2003" (p.38). The insurer’s argument that interest should not be payable because it followed a disability DAC report’s conclusion was rejected.