ACCIDENT BENEFITS NEWSLETTER - APRIL 2005

Catherine Zingg

Villers and Pilot Insurance Company, A03-00093, March 17, 2005 - On June 19, 2000, while driving his pick-up truck, Mr. Villers was rear-ended by another vehicle. Repairs to his truck were estimated at approximately $9,000. Dr. Porter, a neurosurgeon, completed an Application for Determination of Catastrophic Impairment, stating that Mr. Villers had “severe cervical spondolytic myelopathy causing quadriparesis which makes him dependent for basic ADL’s (activities of daily living) - this is the result of underlying degenerative changes exacerbated by an MVA 19/6/00" (p.9).

Arbitrator Bayefsky concluded that Mr. Villers was not catastrophically impaired as a result of the June 19, 2000 accident. He found that Mr. Villers’ condition changed significantly between June and July 2001, when Dr. Lapp reported “distinctive findings” and that Mr. Villers had begun to use a wheelchair at this time (p.22). Mr. Villers’ family was found to have greatly exaggerated his deterioration and ability to walk and to function in the months following the accident (p.22). It was found that on a balance of probabilities the June 2000 motor vehicle accident did not significantly contribute to the deterioration in his condition. It was noted that Mr. Villers suffered from a number of problems in the months following the accident, but these were due to pre-existing and/or non accident related medical conditions (p.22).

McMichael and Belair Insurance Company of Canada Inc., A02-001081, March 2, 2005 - The applicant was seriously injured in a motor vehicle accident on June 14, 1998 when he was ejected through the rear window of a taxi. Mr. McMichael submitted that as a result of the accident he became a crack cocaine addict. The insurer, in turn, took the position that Mr. McMichael was a cocaine abuser before the car accident and therefore his addiction to crack cocaine did not arise from the accident (p.2). Arbitrator Muir found that Mr. McMichael had suffered a catastrophic impairment as defined in the Schedule. He was found to be entitled to attendant care benefits of $5,056.80 per month from April 2002 to date and ongoing pursuant to s.16 of the Schedule, less amounts credited to Belair for times when he was otherwise supervised. The need for attendant care was based on Mr. McMichael’s inability to stay away from crack coccaine.

In reviewing the evidence, the arbitrator acknowledged that Mr. McMichael was an was an unreliable historian and it was difficult to give much credit to what he had to say about his drug use (p.11). It was found that in the years leading up to the accident Mr. McMichael was a recreational user of cocaine (p.14). The DAC assessors concluded that it was appropriate that Mr. McMicahel be assessed under the mental and behavioural aspects of the criteria found in Chapter 14 of The American Medical Association - Guides to the Evaluation of Permanent Impairment (4th ed). In considering the medical evidence, the arbitrator stated:

I find that the CAT DAC assessment has underestimated Mr. McMichael’s level of impairment under Chapter 14 in several important respects. To some degree these difficulties flow from what are, to my mind, significant difficulties with the methodology followed by the assessment team. For the reasons set out below, I prefer the opinions of Dr. Berry, Dr. Ouchterlony, Dr. Bhalerao and Ms. Bray who each have concluded that Mr. McMichael has suffered a Class 4 impairment as described in Chapter 14 of the Guides (p.38).

Another problem with the protocol adopted by the DAC was the elimination of any assessment of Mr. McMichael’s ability to function in a work or worklike situation, in conducting the assessment. The ability to work was treated as a separate fourth area of activity that was to be assessed only if the patient scored a 4 in any of the three other spheres. The arbitrator found that it was not clear where this protocol came from and it was not in the Guides. The arbitrator concluded that Mr. McMichael had suffered a Class 4 impairments in three of the spheres of assessment under Chapter 14, and therefore he met the standard of paragraph (g) of the definition of catastrophic impairment.

The arbitrator further commented:

It is implicit in the protocol adopted by the CAT DAC that more than one score of Class 4 impairment is required for a positive finding of catastrophic impairment. The question arising out of the Desbiens case is whether or not that is what is required by paragraph (g).

Following my conclusion that Mr. McMichael has suffered Class 4 impairments in three of the spheres of assessment under Chapter 14, I find that he has met the standard of paragraph (g) of the definition of catastrophic impairment, however, were I required to decide this question, I would agree with the approach adopted, but not decided, by the court in Desbiens (pp.47- 48).

Afriyie and TTC Insurance Company Limited, A04-000034, March 21, 2005 - Arbitrator Muzzi rejected the TTC’s submission that the applicant’s claim must fail because she had presented no independent evidence to support her story (p.6). The arbitrator found the applicant to be a credible witness and found her account to be believable. The applicant’s failure to report two previous motor vehicle accidents and a medical condition known as hip dysplasia to the TTC were not found to be omissions that were so significant that they would discredit her story (p.7). Conflicting information with respect to the applicant’s marital status was found to have occurred simply because she was in the process of separating from her husband. One of the motor vehicle accidents had occurred ten years before and the arbitrator was satisfied that the applicant had forgotten about the other accident.

With respect to medical examinations scheduled with Seiden Health Management Inc. under s.42 of the Schedule, the arbitrator found that the TTC had not made any reasonable efforts to schedule the examinations for a time that was convenient for the applicant. The fact that the examiners told the applicant of two upcoming appointments was not found to constitute a reasonable effort to schedule a convenient time. Given that the examinations were to be conducted in the applicant’s home, it was particularly important that she should have been consulted with respect to arranging for a convenient time.

Basdeo and Citadel General Assurance Company, A04-001585, March 7,2005 - Mr. Basdeo had been involved in an accident while on his way to work while driving a truck. The insurer submitted that the applicant was entitled to claim WSIB benefits, had elected to receive them and accordingly had no right or ability to commence an action against a third party, such as his employer. Given that he was apparently at fault in the accident The Citadel argued that Mr. Basdeo had no right to commence a civil proceeding against a third party involved in the accident. It argued that Mr. Basdeo could not make a legitimate election under s.59(2) of the SABS and therefore the threatened tort action could only be brought for the purposes of claiming statutory accident benefits.

Arbitrator Muir held that s.59(2) did not apply to the circumstances. The WSIB had advised Mr. Basdeo that his claim had not been made in a timely manner and therefor he was not entitled to benefits. The arbitrator observed that while Mr. Basdeo and his counsel could be accused of being indecisive, they had not been helped by the manner in which the WSIB had handled the claim. It was also observed that Citadel could have availed itself of s.31 of the Workplace Safety and Insurance Act and sought a ruling as to whether Mr. Basdeo’s right to commence an action had been taken away. At the time of the hearing, the WSIB had ruled that Mr. Basdeo was not entitled to benefits and therefore The Citadel was not able to avail itself of the exemption to payment of benefits contained in s.59 (1). Pending the resolution of the dispute it was required to pay Mr. Basdeo benefits in accordance with s.59 (5) of the SABS.

Allstate Insurance Company of Canada and Estate of Basil McIntosh, P04-00019, March 15, 2005- Director’s Delegate Makepeace upheld the arbitrator’s conclusion that s.32(3) does not require completion of the approved form suppled by the insurer, but requires only that the claimant provide sufficient information to allow the insurer to begin adjusting the claim (p.2). It was found that Mr. McIntosh’s failure to provide complete Application for Accident Benefits, Employer’s Confirmation of Income and Activities of Daily Living forms were serious omissions. However, the Director’s Delegate was not persuaded that the arbitrator had erred in considering the entirety of the parties’ communications in the early days of the claim (p.9). The arbitrator found that Mr. McIntosh gave an early statement to Allstate’s independent adjuster that included details about the accident, his injuries and his need for housekeeping assistance (p.9).