ACCIDENT BENEFITS NEWSLETTER - FEBRUARY 2006

Catherine Zingg

Mulhall and Wawanesa Mutual Insurance Company, A04-000384, December 16, 2005- Mr. Mulhall suffered severe head injuries in a motor vehicle accident on March 18, 2001. He was intoxicated and not wearing a seatbelt at the time of the accident. He suffered a fractured skull, a deformation of the brain in the left temporal lobe and left parietal lobe, and a subdural haematoma in that area. He underwent various surgeries at St. Michael’s Hospital in Toronto and then was discharged to Bloorview MacMillan Children’s Centre until July 27, 2001 when he returned home.

At the time of the accident, Mr. Mulhall had been either “suspended” or “expelled” from school. However it was accepted that he was “enrolled on a full-time basis” as required by s.12(1)(3)(i) of the SABS. Section 12(7)(a) of the Schedule states that an insurer is not required to pay a non earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life. Accordingly, Mr. Mulhall would not be eligible to receive non earner benefits until September 18, 2001. Arbitrator Rogers found that Mr. Mulhall was entitled to a non earner benefit of $185.00 a week from September 18, 2001 to August 31, 2002. In considering whether the applicant had suffered a complete inability to carry on a normal life, Arbitrator Rogers considered the decisions in Cook and Pilot Insurance, A03-001085, May 9, 2005 and Da Ponte and MVACF, A01-000486, October 28, 2002. He found that the test is not solely quantitative and that the manner in which an activity is preformed or the quality of the performance must also be considered (p.17).

The evidence showed that Mr. Mulhall was affable and personable prior to the accident, but he did not do well at school. Of the twenty high school courses he had taken before the accident he had failed five, obtained D’s in thirteen, and C’s in two. He spent a considerable amount of time hanging out with his friends instead of attending school, going to the pool hall or visiting friends’ houses. In grade seven, a standardized academic test had been administered and Mr. Mulhall was found to have a mental age fixed at 6-6 or grade 1 equivalent. He drank alcohol, smoked marijuana and had been in trouble with the police for possession of marijuana. Prior to the accident, Mr. Mulhall had been an excellent athlete, snowboarding in the winter and winning skateboarding contests. He had had two paying jobs pre-accident, one as a dishwasher which he quit after 5 weekends and one with his father moving heavy machines for companies in the garment industry.

In considering the medical evidence, the arbitrator found that many of the doctors did not have a complete appreciation of Mr. Mulhall’s pre-accident problems. The experts agreed, and Arbitrator Rogers accepted, that Mr. Mulhall’s post accident achievements should be measured against his preaccident potential and that the best way they could do that was to compare standardized pre-accident testing with similar post-accident testing (p.18). However, the arbitrator found that none of the experts provided detailed evidence that considered Mr. Mulhall’s pre-accident potential.

The arbitrator found that Mr. Mulhall continued to suffer a complete inability to carry on a normal life on September 18, 2001. He had not returned to any of the sports that he enjoyed pre-accident and he was still on Dilantin, an anti seizure medication, which tempered the quality of his social life (p.19). It was found that by September 2002 the applicant no longer suffered a complete inability to carry on a normal life. He had successfully returned to school, stopped taking Dilantin and resumed his pre-accident social life. He was able to get around on a bicycle, demonstrated that he could use public transit and had long been independent with regard to self care (19). There was evidence that he played pool, dated, went to parties and bars, played video games and had friends. Finally, the arbitrator found that by September 2002 Mr. Mulhall was back on a trajectory that was not wholly inconsistent with his pre-accident potential (p.19). If not for the accident, he would have started at Durham Alternative Secondary School, but it was found that he did not value education and, given his academic and behaviourial history, he would not likely have graduated (p.19).

Michalski and Wawanesa, A03-001363, December 13, 2005 - Mrs. Michalski suffered multiple serious injuries, including a closed head injury in a motor vehicle accident on October 24, 2001. She also suffered from seizures following the accident. At issue in the arbitration was Mrs. Michalski’s entitlement to payment for the attendant care services provided by her husband and children from the date of her discharge from hospital on October 31, 2001 until the date of the attendant care DAC assessment on September 3, 2004. Wawanesa submitted that a person must first be determined to be catastrophic by a CAT DAC to gain access to the enhanced level of benefits (p.8). This reasoning was rejected by the arbitrator who found that Mrs. Michalski met the definition of catastrophic impairment as a result of a brain impairment pursuant to s.2(1)(e)(i) of the Schedule on the date of the accident. The Glasgow coma scale scores recorded by ambulance attendants and by hospital personnel were reported to be between 3 and 9. The arbitrator further noted that Wawanesa had hired a case manager on October 30, 2001 and case managers are available only to those who are catastrophically impaired pursuant to s.17 of the SABS. Wawanesa’s failure to inform Mrs. Michalski that it had made such a determination contravenes s.40(2)(a) of the SABS and the arbitrator found that this information should have been passed on to the applicant by December 18, 2001. It was also found that the SABS does not contemplate the possibility that an insurer may take an inconsistent position on the question of whether an applicant has suffered a catastrophic impairment. It was found that the insurer’s position taken in 2003, that Mrs. Michalski required a determination by a CAT DAC, to avail herself of enhanced benefits, was inconsistent with Wawanesa’s actions of providing case management services since 2001. (p.10).

Possyssaeva and Primmum Insurance Company, A05-000686, January 11, 2006 - Primmum denied the applicant’s claim pursuant to s.48 of the Schedule on the grounds that the applicant had materially misrepresented facts about the accident. At a pre-hearing, the insurer mentioned and Ms. Possyssaeva confirmed that criminal or quasi-criminal charges had been laid arising out of the accident (p.2). Ms. Possyssaeva and her counsel, however, were unwilling to provide details of the charges, the date of the hearing or the disposition of the matter. Primmum, in turn, had requested copies of materials in the Crown brief including a copy of the police officer’s notes, the summary contained in the Crown brief, as well as a copy of the charges allegedly filed against Ms. Possyssaeva. Arbitrator Wilson ordered that Primmum must comply with the protocol outlined in DP v. Wagg (2004) O.J. No. 2053, O.C.A. Ms. Possyssaeva argued that the probative value of the Crown brief would be far outweighed by the prejudice to her arbitration if the contents of the brief were produced, but Arbitrator Wilson rejected this assertion. With respect to the production request he stated:

I accept the submission that Wagg should govern requests for production of a Crown brief. Even in cases such as N. G. v. Upper Canada College (2004) O.J. No.1202, O.C.A., where portions of the Crown brief were ordered disclosed in a civil matter, the screening method set out in Wagg was applied, and the Attorney-General was given both notice and standing to argue the public interest in nondisclosure. There is no reason that practice at the Commission should diverge from that standard (p.6).

In accordance with Rule 67.4, the insurer would be required to serve its motion for production of the Crown brief on the Crown and the police service involved in the process.

Pinto and Allstate Insurance Company of Canada, A05-0004043, January 4, 2006 - Following a motor vehicle accident on July 18, 2004, the applicant submitted a treatment plan, dated September 25, 2004 to Allstate on February 7, 2005. Arbitrator Murray held that Mr. Pinto was precluded under s.50 of the SABS from commencing an arbitration because the treatment plan was not submitted within 30 days as required by s.38(3.1). Counsel for the applicant presented a fax confirmation sheet that confirmed a fax was sent to Allstate on October 14, 2004. The fax confirmation sheet was not addressed to anyone at Allstate, it did not refer to the claimant, it did not refer to a claim number and it did not describe what the sender was sending. The fax confirmation sheet was also not proved since it was only referred to after both parties closed their cases. The arbitrator found that she did not have jurisdiction to hear the claim for expenses incurred under the treatment plan as it was received late and did not comply with the procedures for claiming expenses under the SABS.

Mr. Pinto also claimed a medical benefit under s.14 in the amount of $1,457.95 for chiropractic therapy, acupuncture, massage therapy and laser treatment at East Sheppard Rehabilitation Company under a pre-approved frame work treatment confirmation form for $1,205.00. He also incurred $854.55 for similar treatment at East Sheppard under a treatment plan dated September 25, 2004 for $1,650.00. It was agreed that the insurer had paid $999.60 and the balance of $1,312.90 was claimed. The arbitrator accepted evidence presented by Allstate that it had paid an additional $205.40. A disability certificate from East Sheppard and completed by a chiropractor on July 20, 2004 stated that Mr. Pinto was substantially unable to perform (a) the essential tasks of his employment at the time of the accident; and (b) housekeeping and home maintenance services he normally performed before the accident (pp. 3-4). Under cross examination Mr. Pinto confirmed that neither (a) nor (b) were accurate and the arbitrator placed no weight on the information in the disability certificate given this evidence. Ultimately, the arbitrator denied the claim, relying on the insurer’s examinations, the DAC assessment and Mr. Pinto’s own evidence that he did not require further facility based treatment as of August 27, 2004 (p.5).