ACCIDENT BENEFITS NEWSLETTER - DECEMBER 2003

- Catherine Zingg

Dispute Resolution Practice Code - Rule 39 - Evidence

In David and Allstate Insurance Company of Canada, A02-000969, November 1, 2003, the insurer was ordered to produce a document in its file, which set out the rationale for an offer of settlement made by the claims examiner, prior to mediation.  Allstate objected to producing the document, claiming that the document was not relevant to the benefits claimed by the applicant.  Arbitrator Alves found that Allstate's submission did not respond to Ms. David's  submission that the document was relevant to her claim for a special award.  It was also found that the document would not be shielded by either litigation privilege, solicitor client privilege or by settlement privilege (p.7).  In her reasons, Arbitrator Alves stated:

Settlement privilege prevents third parties from obtaining communications made in furtherance of settlement.  This prevents a third party from using such communications as evidence of liability.  The purpose of the memo was to set out the rationale for settlement.  It is unlikely that it is a communication made in furtherance of settlement.  However, if it is such a document, settlement privilege does not shield documents from production where documents have relevance apart from  an admission against interest.  In this case, the parties to the settlement are the same as those in the arbitration.

SABS 1996

Section 2“Catastrophic Impairment”

In Young and Liberty Mutual Insurance Company, A02-000695 Arbitrator Allen was asked to consider whether the applicant was entitled to a catastrophically impaired designation pursuant to s.2(1)(e)(i) of the Schedule.  The accident occurred on February 15, 2001at approximately 7 am.  Mr. Young, who was 34 years old, suffered numerous serious injuries, including injuries to his head, neck, back, chest, leg, arm and knees.

Mr. Young was unconscious at the accident scene.  The Glasgow Coma Scale reading was assessed at 3 at 7:18 am and 4 at 7:28 am.  A third reading was taken at 7:38 am, on route to the hospital and was recorded as a 3.  In the ambulance, he suffered two seizures, lasting about one minute each.  At 7:55 am, upon arrival at the hospital, his GCS was 3.  He was transferred from The Dufferin-Caledon Hospital to Sunnybrook Hospital, where his GCS was recorded as a 3 at 10:08am.  At the hearing, the applicant argued that he met the requirements of catastrophically impaired, because he maintained a GCS score of 9 or less for a reasonable period of time after the accident.  Liberty Mutual, in turn, argued that a reasonable period of time is six hours after the accident (p.12). 

Arbitrator Allen concluded that the applicant was entitled to a catastrophically impaired designation.  Noting that the definition of catastrophic impairment raises issues of interpretation, Arbitrator Allen stated:

In the circumstances of the case before me, I find that the applicant meets the requirements of catastrophic impairment in that he maintained a GCS score of nine or less for a reasonable time after the accident.  I find that the applicant has proved on a balance of probabilities that on February 15, 2001 he maintained a score of less than 9 for about one hour - from 7:oo am until about 8:00 am, when he was incubated and medicated with paralyzing drugs at Dufferin- Caledon.

I find in the circumstances of the applicant's case that 1 hour is a reasonable time after the accident to have maintained a GCS score of 9 or less.  I do not accept that six hours would have had to pass in the applicant's case before a determination could be made as to whether he would recover quickly, given the severity of his head and facial injuries.  I therefore reject what appears to be a comparison by Dr. Stewart of the applicant's circumstances with that of a soccer player who is hit on the head, knocked out, and who recovers quickly, gets up and walks away (p.5).

Section 5 (2)(b) - Entitlement to Income Replacement Benefits Post 104 Weeks

In Rumak and Personal Insurance Company of Canada, A01-000065, November 5, 2003 the 16 year old applicant was struck by a car as he crossed the street.  A CAT DAC,  report, dated October 26, 1999, stated that Mr. Rumak had suffered a catastrophic injury.  At the time of the accident, Mr. Rumak was on summer vacation from high school and was working full time doing manual work for a landscaping company.  He was also working part-time on the weekends, moving furniture.  The Personal paid him an Income Replacement Benefit, but terminated benefits on April 12, 2001.  Personal took the position that Mr. Rumak did not meet the post 104 week test for weekly benefits, because he returned to work in 1998 and was continuing to work.  It also relied on a disability DAC, which concluded that he did not meet the post 104 week test for IRBS.  Arbitrator Miller concluded that the applicant was entitled to an IRB post 104 weeks.  The Arbitrator also gave notice that she was considering a special award and gave the parties thirty days to make additional submissions. 

The Arbitrator found serious problems with the disability DAC conducted by the Accident Injury Management Clinic in Whitby.  Dr. Kim, a physiatarist, testified that he did not have to know what Mr. Rumak's pre-accident work demands were.  He stated that, unlike a pre 104 week test, he did not consider pre-accident job demands to be important information for the post 104 week test.  Also, there was evidence that the clinic's co-ordinator altered the meaning of Dr. Kim's findings by changing the wording in his conclusion.  Both Doctors Kim and Bauer stated that they did not confer, see or sign the consensus report, contrary to the DAC guidelines.  The Arbitrator concluded that Dr. Kim's report was unreliable, Dr. Bauer's conclusion was not neutral and the DAC report as a whole was inherently flawed (p.166).  The Arbitrator refered to the applicant's return to work after the accident and noted that this was not inconsistent with a finding of “complete inability”.  Arbitrator Allen relied on the reasons in Foden v. Co-Operators Insurance Association (Guelph) (1978) 20 O.R. 2^ND 728 HCJ, where Justice Reid stated that,” there is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it”.  Evidence was heard that Mr. Rumak had difficulty keeping jobs after the accident because of his inability to concentrate and his emotional lability.  The Arbitrator raised the issue of a special award of her own accord, noting that after a review of the totality of the evidence, it appeared that the insurer unreasonably withheld benefits.  Specifically, the arbitrator's concern related to “Personal's” reliance on the Disability DAC report by AIM which on the face of it appears to be inherently flawed” (p.69).

Section 16 - Attendant Care - s. 33 -Duty of Applicant to Provide Information

In McKnight and Guarantee Company of North America, A02-000299, October 28, 2003 Arbitrator Skinner held that Guarantee was entitled to information identifying the service provider and the dates and approximate times of service provision, in addition to the Form 1, before paying an attendant care benefit under s.16  of the Schedule.  Mr. McKnight had been catastrophically impaired in a motor vehicle accident on April 3, 2000.  Seven Assessments of Attendant Care Needs (Form 1) were submitted on his behalf to Guarantee.  Guarantee paid some of the attendant care benefits, but not all of the amounts claimed.  The applicant's position was that the insurer was not entitled to any information beyond that contained in the Form 1.  Arbitrator Skinner rejected the applicant's argument, finding that the insurer was entitled to request information to satisfy itself that an expense had been incurred, i.e. that a service had been provided, before paying an attendant care benefit under s.16.  It was further found that to determine the entitlement, the insurer may in some cases require additional information under s.33 of the Schedule.

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