For the following reasons I find that in the period between when Personal terminated Mr. Rumak’s income replacement benefit and the DAC report, Personal acted unreasonably in withholding Mr. Rumak’s income replacement benefit.
Terminating an applicant’s income replacement benefits is a very serious matter with potentially serious consequences. An insurer contemplating the termination of income replacement benefits, or maintaining a denial, must act reasonably and consider all of the documentation before it. An insurer cannot pick and choose information that favours its own position while ignoring relevant information that favours the applicant.
I find that Personal had a paucity of medical evidence to support its termination of Mr. Rumak’s income replacement benefit and that it acted unreasonably in ignoring relevant information that favoured Mr. Rumak.
I find it unreasonable that Personal would choose to rely on Insurer’s Examinations in 1998 as a basis to terminate Mr. Rumak’s income replacement benefit in September 2000 and yet completely disregard Mr. Rumak’s medical evidence in 1998 because it was outdated.
(a) Report of Dr. Shah
Dr. Shah’s report of his assessment on August 10 and 11, 1998 concludes:
At this time, Mr. Rumak is considered substantially psychologically disabled from returning to a part-time employment . However, following approximately eight cognitive-behaviour therapy sessions to help him cope with his anger, it will be advisable for him to return to employment concurrent with on-going therapy.
The psychological impairment is reducible and reversible.
An Independent Psychiatric Examination is considered essential to further clarify/modify diagnosis and treatment recommendations provided within this report.
Based on the results of this assessment, neuro-cognitive rehabilitation is not indicated. Mr. Rumak has made a remarkable cognitive recovery, which is likely to improve further as Mr. Rumak begins to resolve some of the psychological issues.
[emphasis added]
The first thing to note in the report is that Dr. Shah found Mr. Rumak was “substantially psychologically disabled” and had only opined that after “eight cognitive-behaviour therapy sessions … it will be advisable for him to return to employment concurrent with on-going therapy.” In short, this report recognizes that Mr. Rumak has cognitive-behavioural problems that interfere with his ability to work part-time and that even if he would return to working part-time he would need further treatment.
Personal did not terminate Mr. Rumak’s benefits in 1998 on the basis of this report. Neither did it seek a follow-up neuro-psychological assessment to confirm Dr. Shah’s findings that “Mr. Rumak has made a remarkable cognitive recovery.” I note this latter fact because Personal knew from the Catastrophic DAC report dated October 26, 1999 that Dr. Shah was not qualified to do a neuropsychological assessment on Mr. Rumak. [See note 5 below.]
Note 5: In the Catastrophic DAC report, which found Mr. Rumak had suffered a catastrophic impairment as a result of the car accident, Dr. H. Becker noted that “Dr. Shah is not registered by his college to undertake such neuropsychological assessments.”
In short, at the time that Personal terminated Mr. Rumak’s income replacement benefit in September 2000, Personal had clear notice that Dr. Shah’s neuropsychological assessment of Mr. Rumak in 1998 was not valid because of his lack of qualifications to do so. The only valid neuropsychological report that Personal had in 1998 was from Dr. Brooker, who had been recommended by Personal’s case manager to assess Mr. Rumak. In his report of February 18, 1998, six months before Dr. Shah’s report, Dr. Brooker states that, “There is no fundamental change from his report of December 19, 1997.”
find that Personal’s one-sided view in ignoring relevant information that supported Mr. Rumak’s claim in favour of its own clearly superficial and weak Insurer’s Medical to be unreasonable as basis to terminate Mr. Rumak’s income replacement benefit.
I do not agree with Personal’s submission that there were no substantial flaws that could easily be discerned from reading the DAC report. For the following reasons I find that there were obvious discrepancies, contradictions and omissions that should have given Personal pause for concern.
I find that in weighing all of the evidence and for the reasons given above, Personal, in choosing to ignore the obvious flaws in the Disability DAC, namely the superficiality, lack of neutrality, and the serious omission of the DAC not commenting on Dr. Ouchterlony’s report, acted unreasonably in relying on the DAC and in continuing to withhold Mr. Rumak’s benefits.
At the arbitration hearing Personal had little evidence to contradict Mr. Rumak’s testimony and his supporting evidence regarding his inability to sustain any employment. The one report that Personal relied upon, the Disability DAC report, proved to be substantially flawed.
It was very clear at the arbitration hearing on entitlement that the Disability DAC report, which Personal was relying to support its position, had substantive failures in respect of its accuracy, completeness and impartiality. As well, the DAC proved to have seriously failed in following the proper DAC procedures. These failures have all been articulated in my decision on entitlement dated November 5, 2003.
What is most significant is the fact that the DAC’s flaws, especially the procedural flaws, were brought out in examination-in-chief by Personal’s own witnesses, Dr. Bauer and Dr. Kim. This included the facts that there had been no consensus meeting by the DAC assessors, nor did the DAC assessors see or sign the consensus report. It was also under examination-in-chief that Dr. Bauer revealed that she provided a computer disk of her report which was incompatible with the computer of the AIM DAC facility so that her report would not be changed without her knowledge.
Dr. Bauer was the first to testify. Therefore, by the time Dr. Kim testified, Personal not only knew that there had been no consensus meeting at that DAC, but also that the AIM DAC facility in Whitby had a practice of changing the content of an assessor’s report without his or her knowledge.
Under examination-in-chief, Dr. Kim confirmed Dr. Bauer’s testimony regarding the lack of consensus meeting. It was also during Dr. Kim’s testimony that it was revealed that the DAC co-ordinator had changed Dr. Kim’s original assessment report in significant ways – including Dr. Kim’s conclusion. In my decision on entitlement, I found that these changes were more likely done without Dr. Kim’s knowledge.