ACCIDENT BENEFITS NEWSLETTER - SEPTEMBER 2004

Catherine Zingg

In George and State Farm Mutual Automobile Insurance Company, A03-001062, August 9, 2004 Arbitrator Renahan held that the applicant did not suffer a catastrophic impairment. On November 30, 1999 Mr. George was struck by a car as he walked across the road. He was treated at a hospital, but released the same day. Surgeons who testified at the hearing described the injury to his left thigh as a contusion and haematoma which measured 5cm x 10cm, a separation of some of the thigh muscles, a tract tensor fascial tear as well as injury to the vastus lateralis and subcutaneous tissues in the thigh. In addition, he suffered three fractured ribs and an undisplaced fracture of the tip of the left elbow, which had healed. Mr. George had worked as a corrections officer at the Don Jail. At the hearing he testified that he was “pensioned off” from work following the accident. State Farm paid attendant care benefits in amounts from $348.00 to $515.00 per month and housekeeping expenses of $100.00 per week up to the 104 week mark.

Mr. George underwent a DAC assessment which concluded that he did not have a catastrophic impairment. The DAC assessment team, however, did not include a psychologist on the assessment team, contrary to the DAC guidelines. It did, however, include a psychiatrist. In addition, there was no evidence that the DAC sent assessor practice summaries to Mr. George. The applicant’s lawyer, however, did not raise any objection prior to the assessment. Arbitrator Renahan stated that he would take these defects into account in determining the reliability of the DAC opinion. Counsel for the applicant argued that the DAC process was defective and that Mr. George was “not bound” by it. Arbitrator Renahan rejected this argument and considered all of the evidence presented, including the DAC assessment. In concluding that the applicant had not suffered a catastrophic impairment, he stated:

I find that the only WPI (whole person impairment) rating applicable to Mr. George is 30% for an impaired gait. Even if he had the following additional impairment ratings: lower back DRE II, 5%; cervicothoracic DRE II 5%; and mild ulnar entrapment neuropathy, 6%, after conversion, the WPI is 40%, which is still 15% short of the statutory definition of catastrophic impairment (p. 15).

Attendant care benefits and housekeeping were denied due to lack of reliable evidence. Expenses were awarded to the insurer, with the Arbitrator observing that the applicant’s counsel did not demonstrate knowledge of the DAC guidelines or the guides. In addition, the applicant’s counsel had presented no argument or theory to show that Mr. George had a 55% WPI.

In State Farm Mutual Automobile Insurance Company and Tran, P03-00020, August 12, 2004 (appeal) the insurer appealed an arbitration decision which held that Ms. Tran was involved in a motor vehicle accident. At first, State Farm had paid benefits to the applicant, but then refused to pay additional benefits, arguing that the accident was staged. The following evidence was given at the arbitration hearing:

Although Ms. Crooks initially told State Farm she was the driver of the other vehicle in the accident, the Corolla, she testified at the hearing that this was false. She testified that she had given the keys of the car to a “Sophie”, who was going to arrange a “fictitious accident”. Ms. Crooks later retreived her car from Sophie at a nearby autobody shop where Sophie gave her Ms. Tran’s insurance and driver’s license information. Armed with that information, Ms. Crooks proceeded to a collision reporting center and completed her collision report. Ms. Crooks also testified that she saw Ms. Tran’s damaged Passat at that autobody shop at the same time she was picking up her car, but she did not know and did not see Ms. Tran (pp. 3-4).

Director’s Delegate Evans dismissed the appeal, upholding the arbitrator’s finding that there was no evidence that Ms. Tran participated in a conspiracy to stage an accident. Ms. Tran was not directly asked if she went to the body shop before going to the collision reporting center. State Farm had argued that the arbitrator “could and should have concluded that Thi Yen Tran was not telling the truth when she testified that she observed the driver’s license of Sonia Crooks at the scene of the accident”. The Director’s Delegate noted that Ms. Crooks did not testify about where, when or how she gave the insurance and license information to Sophie, or how Sophie passed it on to Ms. Tran (page 8). It was also noted that Mr. Walter’s report (a forensic engineer) was only as good as the information he had. He had relied on Ms. Crook’s information in preparing the report, when in fact she knew nothing of the accident, as she was not at the scene.

In Cameron and Pilot Insurance Company, A03-000714, August 13, 2004 the applicant arrived at a DAC facility with a friend, whom he wanted to videotape the examination. Mr. Cameron’s entitlement to caregiver benefits beyond the 104 week mark under s. 13(4) of the SABS 1996 was in issue. Dr. Schwartz, a psychologist, refused to proceed with the examination if he was videotaped. At the preliminary issue hearing, Mr. Cameron testified that his experience was that the observations of the medical professionals were often subjective (p. 4). Dr. C. Locke, a chiropractor, who had examined Mr. Cameron in the context of a medical/ rehabilitation DAC had commented in his report that Mr. Cameron grimaced, groaned and cried out throughout the examination (p. 4). Mr. Cameron disputed this observation and felt that a videotape of future assessments would bring objective evidence of what had occurred.

Mr. Cameron’s counsel wrote to the DAC in order to obtain reasons for their refusal to videotape the examination, but he received no response. Arbitrator Killoran found that the issue in the case before her was not one of the reasonableness of Mr. Cameron’s insistence on videotaping the DAC assessment. Rather, the issue was whether Mr. Cameron made himself reasonably available for the DAC assessment (p. 10). It was found that he had made himself reasonably available for the purpose of a DAC assessment and complied with the requirements of s. 50 of the Schedule. Accordingly, he was permitted to proceed to arbitration and was not required to pay the DAC assessment cancellation fee. With respect to the DAC’s failure to communicate with Mr. Cameron’s counsel, the arbitrator remarked:

Despite the best efforts of Mr. Cameron’s counsel to obtain reasons for the DAC’s refusal to allow the videotaping and to negotiate a resolution to this impasse, he received no response from the DAC. Mr. Cameron believed that he was entitled to videotape his DAC assessment. Whether this belief is reasonable or not, it is not in keeping with the spirit of consumer protection legislation that Mr. Cameron should be deprived of his substantive rights as a result of the DAC’s refusal to proceed with the assessment. The DAC failed to provide reasons for its refusal and made no attempt to resolve this contentious issue (p. 11).

In Virk and Liberty Mutual Insurance Company, A03-000023, August 4, 2004 the applicant had given birth to a son by emergency Caesarean section the day after she was injured in a motor vehicle accident on November 25, 1995. Her son, Pushinder, died 15 days later, either from complications arising from his premature birth, or from injuries sustained in the accident. Liberty Mutual had paid for funeral benefits, but refused to pay a death benefit under s. 51(5) of the SABS 1994 on the basis that Pushinder did not meet the requirement of being a “dependant” at the time of the accident. Arbitrator Sapin extensively reviewed the literature dealing with the en ventre sa mere principle and awarded death benefits to the applicant. In support of her decision she cited Christo and Royal Insurance Company of Canada, P96- 00049, September 11, 1996 (appeal), Smith vs. Insurance Corporation of British Columbia (1980) 21 B.C.L.R. 317 SCBC and Fraczek v. Pascual, (2003) 64 O.R. (3d), p. 437. With regard to interpreting the death benefits section, she stated:

Finally, in my view, it is simply not necessary to read the words “at the time of the accident” in subsection 51(5) so as to render the en ventre sa mere legal fiction inoperable, nor, in fact, was such an interpretation necessary to the decision in Ridgley and Zurich Insurance Company, P-004083, April 14, 1998, interpretation upon which Liberty Mutual relies (p. 12).

A special award of $1,500.00 was made to the applicant.