ACCIDENT BENEFITS NEWSLETTER - NOVEMBER 2005

Catherine Zingg

Sabino and Pilot Insurance Company, A04-001740, September 29, 2005 - Arbitrator Killoran awarded ongoing income replacement benefits pursuant to s.5(2)(b) and $3,974.30 for physiotherapy, chiropractic, massage and rehabilitation treatments from October 20, 2003 to March 3, 2004. Interest was also awarded. Ms. Sabino had immigrated to Canada from Portugal in 1989. She had had very little formal education and worked as a sewing machine operator for 12 years prior to the accident. The accident occurred on December 6, 2002, when she was 47 years old.

Prior to the accident, she had experienced numbness and decreased strength in her right leg. Arbitrator Killoran acknowledged that Ms. Sabino had a pre-existing condition which made her more vulnerable to the effects of the motor vehicle accident, but found that the requisite causal connection had been established in that the motor vehicle accident had made a material contribution to the development of her disability (p.10). The arbitrator also followed the reasoning in Quattrocchi and State Farm Mutual Automobile Insurance Company, A-006854, September 29, 1997 in which it was found that where an insured “becomes deconditioned and depressed as a result of ongoing pain and disability which further delays recovery, the insured may be found entitled to benefits based on the psychological elements which were secondary to the physical injuries” (p.10).

In reviewing Ms. Sebino’s education, training and work experience for the stricter test imposed by s.5(2)(b) for entitlement to income replacement benefits post 104 weeks, the arbitrator noted that Ms. Sabino could not read write or speak English, she had very little education and was turning 50 years old that year (p.11). In reviewing surveillance, Arbitrator Killoran observed that Ms. Sabino was extremely tentative and careful while walking up and down a short flight of stairs to her house and always held on to the handrail. The disability DAC report had found that there was little evidence of any residual musculoskeletal impairment as a result of the accident and found nothing that “should preclude her safe, productive return to her preaccident seamstress activities”. The psychologist was of the opinion that Ms. Sabino had only minor residual post traumatic and depressive symptoms which, in his opinion, did not meet the threshold “to constitute a substantial impairment/disability for her seamstress work” (p.6). Arbitrator Killoran preferred the evidence of Ms. Sabino, Dr. Goncalves, Dr. Lorenz and Dr. Kirwin’s evidence to that of the DAC assessors whose conclusions were at odds with some of their findings (p.12). It was held that Ms. Sabino had established on a balance of probabilities that she suffered a complete inability to engage in any suitable employment as a result of both physical injuries and psychological complications resulting from the accident.

The sum of $3,974.30 was awarded for physiotherapy chiropractic, massage and rehabilitation benefits with the arbitrator finding that Ms. Sabino and her family physician provided evidence that the treatment helped her to manage pain and maintain function (p.14). Their evidence was preferred to that of the DAC assessors who tended to minimize Ms. Sabino’s subjective complaints (p.14).

Kaczmarek and Coachman Insurance Company, A05-000346, October 7, 2005 - The applicant objected to Coachman’s request for the clinical notes and records of Mr. Kaczmarek’s treating psychiatrist. In turn, Coachman objected to the applicant’s request to produce its adjuster’s notes after the date he filed for mediation. Arbitrator Sampliner reviewed the documents in dispute. He noted that the practice of the Commission is to accept mediation as a convenient dividing line establishing that parties are in a legal conflict position, but recognizing that adjusting first party claims often continues afterwards (p.3). He was of the view that insurer communications or notes that do not relate to the disputed claims with their first party insured are outside litigation privilege, and the insured person is entitled to review them (p.3). Upon reviewing the adjuster’s notes, he concluded that 14 out of the 18 adjuster entries between April 5, 2004 and July 8, 2005 were privileged communications. Eleven entries dealing with investigations/surveillance were protected by litigation privilege as the insurer had not decided whether or not to rely on that material as evidence at the hearing. Three other entries were subject to solicitor/client privilege, as they were entirely devoted to lawyer/adjuster discussions and advice about the parties’ ongoing conflict after mediation failed on April 1, 2004. The remaining entries were ordered to be produced. These entries dealt with an adjuster’s discussion with an investigator, a DAC centre and receipt of the Application for Arbitration. It was found that if the surveillance was relied upon and the investigators notes were released, then the adjuster’s notes of his discussions with Coachman’s investigator would also lose privilege at that point.

With respect to the clinical notes and records of the applicant’s treating psychiatrist, it was found that despite their relevance the applicant did not necessarily waive all privacy rights by instituting the arbitration. It was found that disclosure of probative evidence in a legal proceeding must be balanced with the goal of avoiding harm to a potentially vulnerable person under therapeutic care (p.5). However, it was found that the applicant had not established the release of the clinical notes could damage either his doctor/patient relationship or his health and they were ordered to be produced. Coachman was ordered not to release the clinical notes outside of the healthcare practitioners involved in the matter.

Basdeo and Citadel General Assurance Company, A04-001585, October 11, 2005 - On October 7, 2003 the applicant was injured in a motor vehicle accident. The Citadel paid some benefits and refused others during the period before he was granted worker’s compensation benefits. Arbitrator Sampliner noted that there had been a great deal of confusion with respect to Mr. Basdeo’s intention to pursue his claims with the Board over the year following the accident, and he appealed the Board’s initial refusal to accept his eligibility. The applicant was successful in obtaining an order that Citadel pay his benefits pending the Board’s redetermination. However, Citadel did not pay the housekeeping and attendant care benefits he had claimed. Mr. Basdeo argued that Arbitrator Muir’s order required Citadel to pay these benefits. Arbitrator Sampliner, however, rejected that view upon reading Arbitrator Muir’s order. He noted that the order did not specifically state Citadel must pay an amount or particular benefit, and there was nothing in the body of the reasons for his decision indicating he considered any evidence from either party about the substance of Mr. Basdeo’s claim (p.3). The applicant also argued that s.59(1) and s. 59(5) of the Schedule obliged his auto insurer to pay all his accident benefit claims while he awaited the termination of his eligibility for worker’s compensation at the Workplace Safety Insurance Board. In rejecting the claim, Arbitrator Sampliner stated:

Moreover, the result of Mr. Basdeo’s interpretation would create an absurd, impractical and unintended distinction between claimant’s awaiting worker’s compensation eligibility and the rights of other claimants. An absolute obligation to pay all claims for any amount, whether properly documented or not, removes that balances between the parties’ rights that are contemplated throughout the Schedule (p.6).

It was held that Mr. Basdeo was precluded from receiving all further accident benefits pursuant to s.59(1) of the Schedule.

Wawanesa Mutual Insurance Company and Amato, P04-00002, October 3, 2005 - Director’s Delegate Evans allowed the insurer’s appeal with respect to the special award and reduced the amount of the special award from $40,000 to $10,000. Mr. Amato had been injured in a motor vehicle accident on June 6, 2000. It was found that payments were delayed unreasonably from September 27, 2000 to January 9, 2001. The arbitrator calculated the special award based on the total amount of benefits unreasonably withheld, which came to about $40,000 in interest for the delay in paying 166 weeks of benefits. The Director’s Delegate, however, found that given the proportional difference between the amounts at stake, the unreasonable delay should only have formed a small part of the total special award. It was found that Wawanesa unreasonably withheld payments after October 24, 2000. In making the special award, the arbitrator had referred to a report of Dr. Castiglione, Mr. Amato’s family physician. It was found that Wawanesa had unreasonably withheld benefits in the face of cogent, reliable medical evidence that should have been considered. However, Dr. Castiglione’s report could not have been reasonably considered by Wawanesa as it was completed only 6 days before the start of the hearing (p.9). The Director’s Delegate found that instead of 166 weeks, a the special award should be based on the 84 weeks from the date of termination to June 6, 2002. Accordingly, the special award would have to be reduced by at least half that amount. The arbitrator had also found that Mr. Amato had suffered mental distress and had to withdraw money from his RRSP. The Director’s Delegate found that the arbitrator had not referred to testimony that Mr. Amato withdrew the funds at least in part to finance a trip to Italy and to pay for a car (p.11) he found that this suggested a lesser vulnerability on Mr. Amato’s behalf then that implied in the arbitrator’s recitation (p.11)