Applicant with pre-existing brain damage awarded NEB and ACB benefits after CAT determination - MacLeod and Coachman FSCO A12-006873

March 11, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MacLeod and Coachman FSCO A12-006873

Decision Date: January 22, 2017
Heard Before: Adjudicator Anne Morris

NEB BENEFITS:  Applicant with pre-existing brain damage is deemed CAT impaired; Insurer has responsibility to provide NEB and ACB benefits to the applicant and to provide him with the information of what benefits he is entitled to.

Issues:

Mr. MacLeod was injured in a car accident on September 13, 2010 and sought accident benefits from Coachman payable under the Schedule. When the parties were unable to resolve their disputes through mediation Mr. MacLeod applied for arbitration at the FSCO.

Issues:

1. Is Mr. MacLeod entitled to receive a non-earner benefit in the amount of $185.00 fromnMarch 14, 2011 to date and ongoing?
2. Is Mr. MacLeod entitled to attendant care benefits as follows:
   • From September 13, 2010 to October 25, 2010 in the amount of $673.51 per month;
   • From October 26, 2010 to September 25, 2012 in the amount of $361.22 per month;
   • From September 26, 2012 to date to February 4, 2016, in the amount of $815.56 per month;
   • From February 5, 2016 to date and ongoing in the amount of $6,000.00 per month?
3. Is Mr. MacLeod entitled to payments for housekeeping and home maintenance services?
4. Is Coachman liable to pay a special award because it unreasonably withheld or delayed payments to Mr. MacLeod?
5. Is Mr. MacLeod entitled to interest for the overdue payment of benefits?
6. Is either party entitled to its expenses of the Arbitration?

Result:

1. Mr. MacLeod is entitled to receive a non-earner benefit in the amount of $185.00 per week from 26 weeks post-accident to date and ongoing.
2. Mr. MacLeod is entitled to housekeeping and home maintenance services at the rate of $45.00 per week from September 13, 2010 to August 31, 2012 and at the rate of $90.00 per week from September 1, 2012 to date and ongoing.
3. Mr. MacLeod is entitled to attendant care benefits, over and above what has already been paid by Coachman, in the amount of $673.51 per month from September 13, 2010 to December 13, 2010 and $361.22 per month from December 14, 2010 to August 14, 2012.
4. Coachman is not liable to pay a special award.
5. Mr. MacLeod is entitled to interest for the overdue payment of benefits in accordance with the Schedule.
6. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Mr. McLeod was involved in a very serious head-on collision on September 13, 2010 when he was 49 years old.  He has no memory of the accident but a review of the evidence shows that he had to be extricated from the vehicle.  His GCS was 13 to 14 initially on arrival at the Brantford General Hospital.  He subsequently decreased his GCS and became combative, requiring intubation.  Intubated, he had a GCS of 3.  He was transferred to Hamilton General Hospital with the following injuries:

1. Small subarachnoid hemorrhage, non-operative intervention.
2. L1 compression fracture, non-operative intervention.
3. Minor facial fractures, non-operative intervention.
4. Minor acquired brain injury, for which the patient will be followed up by Acquired Brain Injury Program as an outpatient.

Mr. McLeod applied for a catastrophic impairment (CAT) determination based on his GCS score and Coachman determined that he was catastrophically impaired following a paper review of the CAT application. Mr. McLeod was not employed at the time of the accident.  It is not disputed that he has been in receipt of Ontario Disability Support Payments for most of his adult life.  He has a learning disability and is functionally illiterate.

Coachman denied non-earner benefits following Insurer’s Examinations on the basis that Mr. McLeod did not suffer a complete inability to carry on a normal life as a result of the accident within the meaning of the Schedule. Coachman paid some attendant care benefits claims and denied others on the basis that the expenses for these benefits were not incurred within the meaning of the Schedule, and/or on the basis that the quantum claimed was greater than what was reasonable and necessary as determined by Coachman.  Coachman paid claims for attendant care services provided by professional service providers but not those provided by friends or family.  Coachman submitted that there was no or insufficient proof of economic loss by friends or family in providing services.  Coachman submitted with respect to professional service providers that the quantum of benefits claimed was less than what Coachman considered reasonable and necessary and would have paid had they been provided.

Coachman denied all claims for housekeeping benefits on the basis that they were provided by non-professionals with no or insufficient proof of economic loss by the service providers.  Coachman also denied that Mr. McLeod met the disability test for housekeeping benefits following insurer examinations. Mr. McLeod has been provided with case management services, physiotherapy, and ongoing occupational therapy assistance.

Mr. McLeod’s ongoing complaints following the accident relate to his brain injury and to ongoing pain complaints, particularly in the right hip and neck.

There are consistent references in the various reports to Mr. McLeod’s complaints of pain.  Mr. McLeod and others gave evidence that he purchased an e-bike because his ability to ride a pedal bike to the extent which he did prior to the accident was restricted by hip pain.  There is evidence that Mr. McLeod tends to minimize, not exaggerate, his health complaints. 

Based on the written and oral evidence the Adjudicator noted that Mr. McLeod is an unsophisticated, guileless man, with a pre-accident history of functional illiteracy.  He was involved in a very serious accident.  The Adjudicator accepted his complaints of ongoing pain as credible and genuine and that they are related to the accident.  The Adjudicator accepted the diagnosis of chronic pain.  There is no medical evidence which contradicts this opinion as to the source of Mr. McLeod’s pain.

It is clear that Mr. McLeod suffered a brain injury as a result of the accident.  While the hospital records, referred to above, diagnose a “minor” acquired brain injury, the trauma to the brain was significant enough that it caused a brain haemorrhage.

A neuropsychologist assessed Mr. McLeod on behalf of Coachman on May 5, 2011 and concluded that although “there is objective evidence of mild neurocognitive disorder and other post-concussive emotional and behavioural sequelae, these impairments have minimal impact on daily routines and/or quality of life.”  In terms of prognosis, it was his opinion that the neuropsychological impairments were temporary and there would be near-complete or complete recovery within a period of 12 months or less.

A neuropsychologist conducted an assessment on behalf of Mr. McLeod and provided a report dated May 9, 2011. The examination diagnosed a Cognitive Disorder, mild, acute on chronic, Personality Change due to brain injury, and Adjustment Disorder.  Mr. McLeod’s brain injury was described as a “Moderate (complicated) Traumatic Brain Injury.” The prognosis was guarded in his view.

A neuropsychiatrist, assessed Mr. McLeod and provided a report dated July 25, 2015.  He gave his opinion at the Hearing that medical doctors are in a better position than psychologists to assess an organic brain injury.  The Adjudicator agreed.  In addition to reviewing other relevant documentation in his report, he reviewed the hospital and other records made at the time of and soon after the accident, noting the significant acceleration-deceleration forces during the MVA.  He concluded that it was probable that Mr. McLeod had developed significant cognitive impairments as a result of the accident, superimposed on his pre-existing low IQ and possible learning disability. He also reviewed Mr. McLeod’s functional impairments, noting that he walked and bicycled less.  He noted various incidents reported in various occupational therapy reports such as having burned himself while cooking, not eating regularly and exhibiting poor hygiene.  He noted the incident where Mr. McLeod injured his toes with a lawn mower, with fractures and partial amputations.  He left the emergency room without bandaging treatment.  He also noted Coachman’s occupational therapy report dated August 24, 2012, which indicated significant safety concerns in that Mr. McLeod was unable to provide appropriate responses to various emergency situations. He concluded that overall, the cumulative data showed that Mr. McLeod was functionally impaired and of significant risk to his and perhaps others’ safety.  He indicated that Mr. McLeod required support and assistance in his community over time.  He believed that he required constant attendant care and that he might require or at least benefit from institutionalization.

The psychiatrist also indicated that it might be appropriate to have Mr. McLeod’s capacity to make personal care decisions assessed.  He referred in his report to Mr. McLeod’s incapacity to manage property.  Mr. McLeod was found by a capacity assessor on two occasions to not have the capacity to manage his property.  Mr. McLeod, however, was found in a capacity assessment report dated October 26, 2013, to have the minimally required understanding and appreciation to make decisions in the areas of healthcare, safety, shelter, clothing, nutrition and hygiene.  The assessor noted that because of his difficulties with memory and difficulty to follow through with plans Mr. McLeod will need ongoing support in the areas of healthcare and shelter. 

The Adjudicator found on all of the medical evidence, that Mr. McLeod sustained a serious traumatic brain injury in the accident which more likely than not has caused significant cognitive and functional impairment.  Mr. McLeod also suffers from chronic pain which has contributed to his impairment.

It is the position of Coachman that the leading decision on non-earner benefits, Heath v. Macleod directs us to compare Mr. McLeod’s activities before the accident and after the accident.  It is the further position of Coachman that Mr. McLeod’s life before the accident was quite basic, as demonstrated in the ODSP file, and, after the accident, remains quite basic.  In terms of activities, he bicycled, drank beer, and played pool before the accident and still does so, as shown in the video surveillance.  If his ability to bicycle is limited, he has acquired an e-bike or scooter, which helps him to get around.

The Adjudicator took the view that while it would be wrong to attribute all of Mr. McLeod’s post-accident behaviour to the accident, it is also wrong to attribute all of his post-accident behaviour to his pre-existing functional illiteracy.  Heath directs us to look at life circumstances as well as activities.  In terms of activities it is clear from all of the evidence including the oral evidence, that bicycling was a very important aspect of Mr. McLeod’s quite simple life.  He did not drive.  After the accident his ability to cycle and walk was limited by hip pain.  This was why he got an e-bike, from the evidence.  An e-bike is not a bicycle.  It is different in the way (for the purposes of illustration) that a wheelchair is different to walking.  Bicycling, not an e-bike, was an important part of Mr. McLeod’s pre-accident activity.

The accident also affected Mr. McLeod’s overall life circumstances.  The evidence shows a decline in personal hygiene which, from the oral evidence of Mr. McLeod’s sister and former roommate, was good prior to the accident.  Mr. McLeod’s personality has changed.  He has gone from being good natured to being short tempered.  While he still plays pool apparently, the people with whom he plays pool have changed.  It appears from the evidence that perhaps one of the more significant changes in life circumstances since the accident has been the departure of his roommate, Diane, with whom he had shared a home on a platonic basis, for four or five years prior to the accident and two years afterwards.  He had in the past been able to maintain a romantic relationship with another woman for seven years.  It appears from the evidence, including the evidence of Diane, that Mr. McLeod’s temper outbursts as well as safety concerns such as leaving cigarettes burning in ashtrays for example, were a large factor in Diane’s decision to move.  Her departure has led to less stability in Mr. McLeod’s life and financial pressures, and roommates who are viewed by Mr. McLeod’s sister as less desirable.

Coachman denied a NEB on the basis of Insurer Examinations in 2011. The Adjudicator preferred the psychiatric opinion that Mr. McLeod suffered a complete inability to lead a normal life as a result of the accident.

On the basis of the evidence as a whole, Mr. McLeod has met the “complete inability to lead a normal life” test for non-earner benefits as articulated in the Schedule and in the Heath decision.  Mr. McLeod is entitled to non-earner benefits at the rate of $185.00 per week, from 26 weeks post-accident to date and ongoing in accordance with the Schedule.

Regarding ACB, Coachman visited Mr. McLeod’s home twice.  The first time, shortly after the accident, Coachman took a statement which suggested that Mr. McLeod required attendant care as well as housekeeping services.  Mr. McLeod was deemed to be catastrophically impaired because of a brain injury relatively shortly after the accident.  He was living on ODSP payments which strongly suggests very limited financial means.  Coachman would have been aware of this.  In addition, Mr. McLeod had a pre-existing history of functional illiteracy.  The second time Coachman visited, in 2012, it was to take a statement from his roommate as to whether she had incurred expenses as a result of providing attendant care services for Mr. McLeod.  She had not and so Coachman denied payment for attendant care services on the basis they were not “incurred” within the meaning of the Schedule.

It is clear from the changes to the Schedule in 2010, that the legislature intended to limit monetary payment to service providers who were not professionals.  Entitlement, however, to attendant care services or housekeeping services provided by a professional was not limited.  It appears that Coachman was focussed, particularly in 2012, on whether it had to pay for attendant services provided by Diane, and not at all on whether the services should have simply been provided. 

The Adjudicator determined that on the particular facts of this case, i.e. a catastrophically impaired Applicant with a brain injury living on government assistance who would not have been able to afford professional services on his own, Coachman could have and should have let Mr. McLeod know that Coachman would pay for services, whether housekeeping or attendant care services, provided by a professional.  Coachman has a first party insurer duty of good faith towards Mr. McLeod and is responsible for paying for expenses which are reasonable and necessary.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.