Ken Alex Rumak v. Personal Insurance Company of Canada – Reasons for Decision

Ken Alex Rumak v. Personal Insurance Company of Canada

Reasons for Decision

Issues

The Applicant, Ken Alex Rumak, was injured in a motor vehicle accident on July 6, 1997. He applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.1 Personal terminated weekly income replacement benefits on April 12, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Rumak applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, C.I. 8, as amended.

The issues in this hearing are:

1. Is Mr. Rumak entitled to an income replacement benefit in the amount of $214.88 per week pursuant to subparagraph 5(2)(b) of the Schedule from April 13,2001 and ongoing?
2. Is either party liable to pay the other's expenses in respect of the arbitration hearing, pursuant to subsection 282(11) of the Insurance Act?

Mr. Rumak also claims interest on the amounts owing.

Result

1. Mr. Rumak is entitled to an income replacement benefit in the amount of $214.88 per week from April 13, 2001 and ongoing, less any amount for income received by Mr. Rumak in respect of any employment after the accident.
2. Mr. Rumak is entitled to interest on past benefits owed pursuant to subsection 46(2) of the Schedule.
3. The parties shall have 30 days from the issuance of this decision to inform the Case Administrator on this file if they wish to present any further evidence and/or submissions on the issue of a special award, failing which I will make a decision on the evidence on the record in this matter.
4. The issue of expenses is deferred until after the hearing on the special award.

Background

Mr. Rumak, who was 16 years old at the time of the accident, suffered a catastrophic injury2 when he was struck by a car while crossing the street at 8:30 p.m. on July 6, 1997 in Whitby, Ontario.

When Mr. Rumak was hit by the car he was thrown onto the hood of the car and he struck the windshield, which spider webbed as a result of the impact. The moving car then threw Mr. Rumak about 20 or 30 feet and he hit the ground face first. At the scene of the accident the paramedics observed an obvious head trauma3 , particularly over his right eye. They also reported his Glasgow Coma Scale (“GCS”) – a test measuring a person’s consciousness level – on three different readings fluctuated from 5/15, 9/15, and 4/15.

Mr. Rumak was immediately taken to the Oshawa General Hospital. His GCS reading when he arrived at the hospital was 13/15. His condition however began to deteriorate and his GCS reading went down to 7/15. A tube was inserted into Mr. Rumak’s larynx to keep the air passages open, and he was transferred to Sunnybrook Health Science Centre in Toronto (“Sunnybrook”) at approximately 1:25 a.m.

At Sunnybrook, Mr. Rumak immediately underwent two operations. The first operation was neurosurgery. This operation involved the elevation of the depressed frontal skull fracture and the repair of a laceration to his dura – the outer covering of his brain. The neurosurgeon recorded that the underlying brain tissue that was seen through the lacerated dura was “obviously contused and appeared necrotic.” That is, there was bruising and signs of cell death in the frontal area of Mr. Rumak’s brain.

The second operation, which occurred immediately after the first one, related to the fracture to Mr. Rumak’s right eye orbit and involved an open reduction and internal fixation of the inferior orbital rim with a bone graft to the orbital floor to repair me damage to the orbit.

Mr. Rumak remained in a semiconscious state in the Intensive Care Unit for about six days. He was then transferred to a ward and was discharged from hospital on July 23, 1997. While he was at the hospital, however, he developed a staph infection which required him to be on intravenous antibiotics for a period of two weeks.

Mr. Rumak’s injuries at the time of the accident can be briefly summarized as follows:

• a closed head injury
• right frontal depressed skull fracture
• right frontal contusion
• facial fractures involving the right eye – this included fracture of inferior orbital rim, fracture defect of right orbital floor and fracture of the superior orbit – as well as a fracture of the right Zygoma (cheekbone)
• lacerations to right eye and eyebrow
• contusions and abrasions to the face and extremities
• a fractured left clavicle
• a partial ligament tear in the right knee
• left side hearing loss
• general bodily injuries included neck pain, muscle spasms, restricted range of movement and flow, problems with his pelvis and positioning of some of his internal organs.

In addition to the two operations Mr. Rumak underwent on July 7, 1997, as a result of the accident he also underwent two other operations. One, was in November 1999 when the tear to his right knee ligament was repaired. The other was on December 17, 2001, which involved a surgical reconstruction of the skull and facial bones in an attempt to correct a post-traumatic deformity and orbital volume discrepancies. The operation included the removal of the hardware from his previous surgery and the contouring of excessive bone in the right orbital roof and reconstruction of the contour of the skull with calcium phosphate cement and the reconstruction of the right enophthalmos [a backward displacement of the eyeball into the orbit] and correction of the orbital volume discrepancies with Medpor implant.

Mr. Rumak, who is now 22 years old, submits that as a result of the accident he suffers from cognitive, physical, emotional and behavioural problems which has resulted in a complete inability to engage in any employment for which he is reasonably suited by education, training or experience pursuant to the post 104-week test in subsection 5(2) of the Schedule.

Personal submits that Mr. Rumak does not meet the post 104-week test in that he has worked and continues to work since 1998. In addition, Personal submits that Mr. Rumak’s problems predate the accident.
Notes:

¹The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.

²On October 26,1999, a Catastrophic Impairment DAC Assessment determined that Mr. Rumak suffered a catastrophic injury as a result of his car accident.

³It was later confirmed that Mr. Rumak suffered a fractured skull and a brain injury. Specifically, he had “suffered a right frontal lobe contusion involving multiple foci of haemorrhage and edema of the surrounding brain tissue. These injuries were associated with a fracture of the roof and lateral wall of the right orbit extending vertically through the frontal lobes.” [Applicant's submissions at p,9]

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Ken Alex Rumak v. Personal Insurance Company of Canada – Reasons for Decision