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  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

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Allstate Insurance Company of Canada and Adel Harb https://www5.fsco.gov.on.ca/AD/5636

Allstate Insurance Company of Canada and Adel Harb https://www5.fsco.gov.on.ca/AD/5636
Decision Date: 2019-02-13Appeal, Final Decision, FSCO 5636

According to the Appellant, a “stand-alone” determination regarding catastrophic impairment in the absence of any dispute regarding accident benefits constituted a binding declaration of right, which fell within the exclusive jurisdiction of the Court of Appeal or the Superior Court.[3]

Further, the FSCO arbitrator’s jurisdiction derived solely from sections 279, 280 and 281 of the Insurance Act, and any power they have must be “… limited to dealing with those questions that must be answered in order to make a ruling on an applicant’s entitlement to benefits.”[4]  As the Courts have held that a designation of catastrophic impairment is not, in and of itself, an accident benefit, an arbitrator cannot determine the stand-alone issue of catastrophic impairment when no accident benefits are sought in the arbitration proceeding.

In his decision, the Arbitrator addressed these arguments. He acknowledged the determination of catastrophic impairment was not an accident benefit: “Reaching the status of catastrophic impairment does not itself determine entitlement to any specific benefit. It is only a gateway to entitlement to the highest tier of enhanced benefits under the Schedule.”[5]

Nonetheless, the Arbitrator held he was not persuaded that an arbitrator did not possess the jurisdiction to decide all disputes in respect of a person’s entitlement to accident benefits, or the amount of benefits to which the person is entitled. He found section 282(3) of the Insurance Actspecifically allowed an arbitrator to determine all issues in dispute, whether raised by the insured or the insurer.

The Arbitrator also noted that the Court of Appeal had recognized that within the realm of accident benefits, the courts do not have the sole jurisdiction to make a catastrophic determination. He was unconvinced a finding of catastrophic impairment was declaratory or equitable relief; it was a question that needed to be answered prior to determining whether a specified benefit was reasonable and necessary.

Once he made that determination, the Arbitrator went on to find the Respondent was indeed catastrophically impaired.
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Decision Date: 2018-04-04 Arbitration, Final Decision, appeal pending, FSCO 5530

Mid-Hearing Motion #1

Upon closing his case and prior to the Insurer calling Dr. Sharma, an orthopaedic surgeon, the Applicant objected to the doctor taking the stand in order to testify.

The Applicant argues that the doctor did not assess the Applicant for a catastrophic impairment, but opined on the Applicant’s income replacement benefit (“IRB”) issue. This case is only about a catastrophic determination, under mental and behavioural issues. There is no relevance to Dr. Sharma’s testimony or in other words there is not a relationship with the doctor’s expertise and the issues in dispute. There is no probative value to his testimony, which may be prejudicial to the Applicant. The Applicant is unsure as to the intention of this witness’ testimony. Thus the evidence as it relates to the issue in dispute is unknown to the opposing party.

The Applicant argues that all non-relevant evidence should be excluded.

The Insurer argues that there is no prejudice in this instance and the fact that the Applicant does not know what the relevance of his evidence is, is not in itself prejudicial to the Applicant. The Applicant has the doctor’s reports and the diagnosis and the conclusions of the reports. The Insurer argues that the Applicant suffers from a constellation of symptoms, as has been already evidenced in this Hearing, according to the Guides[17]: chronic pain under Chapter 15, a closed head injury under Chapter 4, and not just the narrow issue of mental and behavioural issues under Chapter 14. Therefore the Insurer argues it has the right to bring this case to the attention of the trier of fact and present its case as it sees fit. The Insurer argues that the Applicant best fits Criterion 7 and not Criterion 8.

The Applicant replies that Dr. Sharma did not have any expertise in chronic pain. This is subjective and goes to the credibility of the Applicant which cannot be allowed as the doctor did not ask the correct questions to the Applicant directly.

The Insurer argues that Dr. Sharma is not being called for credibility issues alone, but he has tracked the Applicant’s physical condition, and the Insurer wants to argue this case on that basis. Further the Insurer suggests that it will not be asking for a whole person impairment (“WPI”) rating from the doctor, which has not been provided in the doctor’s report.

Decision

In the interest of fairness to the Insurer, I will allow the witness to testify to his reports and the implications of those reports on the Insurer’s perspective of this case. In my view, the Insurer also has the right to present its best evidence for its best defense. This of course does not have an impact on the Applicant’s ability to present his case as he ultimately has the burden of proof of entitlement.

Mid-Hearing Motion #2

During the examination of the Insurer’s expert, Dr. Sharma, counsel for the Insurer and Dr. Sharma recognized that his final report was not the report that the doctor had dictated or submitted to the service provider known as “CVE”.

The Insurer moved that I allow the correct version of the report in as evidence despite the late service.

Arguments

The Insurer argued that under Rule 39.3 (c) of the Dispute Resolution Practice Code (the “Code”), I may allow the evidence due to extraordinary circumstances. This section reads as follows:

39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that:

(c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.

The Insurer argues that the only explanation it or Dr. Sharma can offer is that the third party service provider, who polishes the doctor’s formatted reports and submits them to the Insurer for dissemination, somehow and inexplicably changed vital sections of his report. Unfortunately, this has just been discovered and is out of the control of either party or the doctor. The doctor testified that he does not see the finished product prior to it being sent out to the parties. The doctor dictates the report, it is transcribed, and he then reviews it, makes any adjustments and then approves it for the proper formatting and the auto-signature to be applied. The doctor admitted it has not been his practice to review final reports in their final format in the past.

The Applicant argues that I should not allow the new report into evidence, for three reasons: first, the Code does not permit it, second, he has already objected to the doctor’s evidence, and third, it is not consistent with the principles of natural justice as he has been taken by surprise and/or ambushed. He is unable to properly cross-examine the witness. The Applicant has not been able to request the doctor’s notes and records in order to understand his evidence.

The Insurer’s remedy to the Applicant’s concerns of prejudice is to adjourn the Hearing, for two weeks, in order for the Applicant to read any documents he may want to review in order for him to properly cross-examine the doctor.

Decision

In my view, extraordinary circumstances are situations that appear as a surprise, and the surprise is out of the control of the parties. This is the case before me today. Essentially, CVE submitted a false report that negatively impacted on the Applicant, as the Insurer relied on this report in determining benefits the Applicant may have been entitled to, to one degree or another. This is verified by Insurer’s counsel. This issue was discovered on the day, just hours prior to the commencement of this proceeding and was reported immediately thereafter.

For the reasons above I adjourned the Hearing, after the doctor’s examination-in-chief had been completed, for two weeks, in order for the Applicant to properly prepare his cross-examination.

[]

In regards to Dr. Sharma’s evidence that he believes that the underlying pain experienced by the Applicant can be attributed to his arthritis, I remain unconvinced that all of the Somatic Symptom Disorder, with predominant pain, persistent, as diagnosed by the Insurer’s own psychiatrist in June 2015,[50] is associated solely with the arthritis. There is no direct evidence to that effect. I also note that Dr. Sharma only makes a suggestion that a possible head trauma occurred and that this went unverified, therefore, in my view, means a Chapter 4 impairment rating and subsequent WPI rating are not necessary or required.

[]

The Applicant argues that the special award is warranted on the following grounds:

1.      The Insurer refused to accept the CAT application based on Dr. Scott’s flawed report, as the evidence shows the doctor clearly did not follow the Guides recommendations;

2.      Mr. Landry’s OT report was not provided to Dr. Scott prior to the release of Dr. Scott’s CAT report, despite the critical role it should have played as part of a CAT determination team’s assessment of the Applicant;

3.      The Insurer relied upon a falsified or ghost written report of Dr. Sharma, which the Insurer had relied upon in making its decision not to accept the Applicant’s CAT application. As such the Insurer should be held vicariously liable for the conduct of a third party assessment firm it hired. The Applicant relies in part on the Supreme Court Decision in Bazley.[56]

In light of these facts the Applicant requests a finding of a 50% special award on benefits that the Applicant would have been entitled to from the date of the denial on November 2015 to date.

The Insurer argues, in part, that in respect of a special award, it does not believe that there are either grounds for or a jurisdictional basis upon which a special award can be granted. Further, the Insurer objects to the argument that it ought to be held responsible for the actions of CVE.Upon becoming aware of the error it communicated that fact to the Commission. It acted honourably and reasonably in all the circumstances. It is submitted that neither the error nor the report played a role in the determination of whether the Applicant had suffered acatastrophic impairment.

 
 

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