[15] Multiple neuropsychological assessments were performed by Dr. Schmidt. I do not find the reports of Dr. Schmidt to be compelling and grant them little weight. They are inconsistent with the medical records documenting the applicant’s injuries and impairments. Dr. Schmidt concluded that the applicant’s test scores were invalid, however the neuropsychologist who performed the catastrophic assessment on behalf of the respondent — Dr. Wiseman — reviewed Dr. Schmidt’s test data and determined that the scores were within valid ranges.
[16] Dr. Schmidt initially saw the applicant in March 2017 for a neuropsychological assessment.[5] In his report dated April 13, 2017, Dr. Schmidt noted “there is a discussion of a sustained traumatic brain injury within his medical record, but this seemed to absolve shortly after his accident… He was also able to complete his education post-MVA”. These findings are contrary to the hundreds of pages of medical records, including many items listed in the “Documents Reviewed” section of his report, which establish that the applicant did sustain a severe traumatic brain injury and continued to suffer from ongoing cognitive impairments as a result. Even the neurologist, Dr. Mendis, noted in his report “from a neurological perspective, he sustained a traumatic brain injury, which is well-documented in his medical record” [emphasis added.] Dr. Mendis also administered the MoCA, and the applicant scored 23/30. Further, Dr. Schmidt’s indication that the applicant was able to complete his education post-accident is incorrect — the applicant made multiple attempts to return to school post-accident but was unsuccessful.
[17] Dr. Schmidt noted in his report that the applicant was having difficulty following instructions during his assessment, including going into a different testing room than the one he was being led to. He did not follow all the instructions during testing and was unable to complete one of the tests. Dr. Schmidt also noted that there were some auditory processing concerns given the applicant’s slow responses. He also demonstrated awkward pen grip and fatigue during testing. However, according to Dr. Schmidt, the validity testing was indicative of symptom exaggeration. Despite the observations noted above, based on the medical records, background history, behavioural observations and testing data, Dr. Schmidt concluded “I am more inclined to side on performance and symptom exaggeration which have affected the interpretation and quality of his testing, and thus complicating diagnostics and treatment recommendation which at this point are nil”. However, Dr. Schmidt requested to review the Ministry of Transportation records, indicating that his opinion may change.
[18] An addendum report was completed by Dr. Schmidt, dated January 11, 2018.[6] Upon reviewing the additional documentation including the driving assessment and a progress report from the occupational therapist, Dr. Schmidt concluded that he was unable to gather valid and reliable information, and therefore recommended a further evaluation to properly formulate his opinion regarding a “complete inability to carry on a normal life”.
[19] Accordingly, a new neuropsychological assessment took place in June 2018.[7] Dr. Schmidt again concluded in his June 26, 2018 report that he had “no objective data to support that [the applicant] currently suffers a complete inability to carry on a normal life as a result of the accident from a neuropsychological perspective”. Dr. Schmidt again found that the quality of the testing was impacted by the applicant’s “performance and symptom exaggeration”. Given the lack of reliable and valid testing data, Dr. Schmidt determined that he could not make any recommendations.
[20] In the fall of 2018, the applicant underwent assessments on behalf of the respondent to determine if he had sustained a catastrophic impairment as a result of the accident.[8] Assessments were performed by an occupational therapist, Ms. Nicholson, and a neuropsychologist, Dr. Wiseman. The respondent’s assessors determined that the applicant was catastrophically impaired per criteria 4 – brain impairment. Dr. Wiseman concluded that the applicant’s level of brain-related cognitive impairment was compatible with Lower Moderate Disability (5) per the Extended Glasgow Outcome Scale (“GOS-E”) at one year or more post-accident.[9]
AWARD PURSUANT TO REGULATION 664
[70] Section 10 of Ontario Regulation 664, R.R.O. 1990 states that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award with interest.
[71] Just because I have found that the respondent was wrong in its denial of the non-earner benefit does not automatically entitle the applicant to an award. An insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions.[25]
[72] The case law has established that an award should be granted only where there was unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
[73] The respondent cited a Tribunal decision which determined that the threshold is not met when an insurer withholds payment based on its section 44 examinations.[26] The respondent relies on the conclusions of its section 44 examinations in denying the applicant’s entitlement to the disputed benefits. However, I find that “papering” a termination by obtaining a compliant report from an assessor is not necessarily protection against an award if an insurer closes its mind to other information available to it that may affect its decision.[27]
[74] In this case, I find that the respondent acted unreasonably when it denied benefits to the applicant based on the conclusions of its section 44 assessors. The reports of Dr. Schmidt determined that there was some impairment, it was suspected to be exaggerated, and the data was found to be invalid. However, I find that the respondent ignored other medical information available to it in maintaining its denial, including the respondent’s own catastrophic assessment reports. I find that after receiving the report of Dr. Wiseman in which she concludes that Dr. Schmidt’s interpretation of the data was incorrect – the scores fell within a valid range – and given her conclusions about the applicant’s level of impairment, the respondent acted unreasonably in continuing to deny the applicant’s claim for non-earner benefits. The respondent has an ongoing obligation to consider new information as it becomes available and reconsider its prior determinations.
[75] The respondent called no witnesses to testify at the hearing, but forced the applicant to proceed to a four day in-person hearing despite the conclusions of its own catastrophic assessors which challenged the conclusions of the assessors the respondent relied upon in refusing to pay the benefits. I find this conduct amounts to unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
[76] The quantum of a special award should be proportionate to: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; and (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.[28] The Tribunal has added a seventh factor, being the overall length of the delay.[29]
[77] I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld. I have also taken into account the applicant’s vulnerability given his brain injury, and dependence on others. The respondent should have taken a second look at the evidence prior to the hearing, however, the catastrophic assessment reports were received only a few days prior to the hearing. Considering these factors, I find that the appropriate quantum is 40% of the amount to which the applicant is entitled for the disputed benefits, plus interest in accordance with the Schedule. I leave the calculation of the exact amount of the award and interest to the parties – given that the parties agreed that the quantum of benefits is not to be determined by the Tribunal in this hearing. If there is disagreement in the calculation of this amount, either party may contact the Tribunal to schedule a case conference with me within 30 days of the release of this decision.
ORDER
[78] The applicant is entitled to weekly non-earner benefits from February 1, 2017 to date and ongoing. The benefits shall be paid forthwith, with interest in accordance with the Schedule.
[79] The applicant is entitled to an award under Regulation 664 corresponding to 40% of the amount to which he is entitled to on the date of this decision, with interest in accordance with the Schedule.