QB A.D. 1998 151 J.C.Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: DAVID SAWKIW and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT David Rusnak for the applicant Carol Kraft for the respondent JUDGMENT PRITCHARD J. September 4, 1998 [1] David Sawkiw\'s ("Sawkiw") income replacementbenefits under The Automobile Accident Insurance Act, R.S.S.1978, c.A-35, (the "Act") were terminated by the respondent,Saskatchewan Government Insurance, ("SGI") and Sawkiw hasapplied to this court pursuant to s. 197 of the Act for anorder setting aside such termination. [3] The termination of benefits was made pursuant to s. 185 of the Act which provides: "185 The insurer may refuse to pay benefit to person or may reduce the amount of benefit or suspend or terminate the benefit, where the person: (a) knowingly provides false or inaccurate information to the insurer; (b) refuses or neglects to produce information reasonably required by the insurer for the purposes of this Part or to provide an authorization reasonably required by the insurer to obtain the information; (c) without valid reason, refuses to return to his or her former employment, leaves an employment that he or she could continue to hold, or refuses new employment; (d) without valid reason, neglects or refuses to undergo and examination by practitioner, or interferes with an examination by practitioner, requested or required by the insurer; (e) without valid reason, refuses, does not follow or is not available for treatment recommended by practitioner and the insurer; (f) without valid reason, prevents or delays recovery by his or her activities; (g) without valid reason, does not follow or participate in rehabilitation program made available by the insurer; or (h) prevents or obstructs the insurer from exercising any of its rights of recovery or subrogation pursuant to this Part." [5] On April 14, 1997 Sawkiw was in motor vehicle accident and suffered soft tissue injuries to his cervical spine. His vehicle was struck from behind by an uninsured driver. Sawkiw is a farmer and pursuant to the Act, hereceived a partial income replacement benefit from SGI onthe basis that he was not able to perform some but not allof his farm duties. Following the accident and until August, 1997 he was receiving physiotherapy two to three times per week in Preeceville where he lives. As his condition was not improving, SGI arranged for secondary assessment to be done on August 17, 1997 at physiotherapy clinic in Yorkton. Following this assessment, Sawkiw was scheduled for daily physiotherapy in Yorkton commencing September 24. This physiotherapy was to continue for period of six weeks with three to four hours of rehabilitation each day. The return trip between Preeceville and Yorkton is approximately 200 kilometers. While attending physiotherapy in Yorkton, Sawkiw was entitled to receive mileage and meal allowance in addition to the partial income replacement benefits. Sawkiw attended physiotherapy in Yorkton on September 24, 25, 26 and 29. He was not there on September 30 but he attended once again on October 1, 1997. [6] October was not good day for Sawkiw. Some of the details of that day are contained in paragraph of the affidavit of Joe Saul, an exercise therapist at the physiotherapy clinic that Sawkiw was attending in Yorkton. Further details are contained in paragraphs and of the affidavit of Ken Redl, physiotherapist at the same clinic. Affidavit of Joe Saul "2. That on the morning of October 1, 1997, Mr. Sawkiw was performing his exercises at the Centre and went over to check on him and see how he was doing. At that time, Mr. Sawkiw advised me that he was very unhappy with the fact that he had to come in to Yorkton for treatment every day. He said that he had disabled wife and that he did not have time to come in every day and then go back to the farm and do all the farm work after he was tired from his treatment. He complained about the amount of money that SGI was paying him and that he couldn't afford to be attending treatment every day. He complained that SGI was pushing him and pushing him and that he could feel himself starting to snap. He then told me "that someone is going to get killed over this and it'll probably be me, but I'm going to take somebody with me." Affidavit of Ken Redl "5. At approximately 10:00 a.m. on October 1, 1997, Mr. Joe Saul, one of my employees, the exercise therapist, reported to me that Mr. Sawkiw had made some disturbing comments. Particulars of these comments are contained in the Affdidavit (sic) of Mr. Saul. intended to let Mr. Sawkiw's frustrations settle before talked to him about his incident, however, later that same morning, at approximately 11:50 a.m., heard him again mention killing someone. At that time heard Mr. Sawkiw tell another patient that he was very angry with SGI and their handling of his claim and perhaps killing someone and/or himself would be an option. was in treatment room with the door open with another patient at the time overheard Mr. Sawkiw make these statements. 6. Approximately 10 minutes later, at 12:00 noon, had private meeting with Mr. Sawkiw. He again expressed anger and frustration with SGI and their control over his medical appointments and their Income Replacement Benefits and the lack of proper compensation. He did not again mention killing anyone at this time, however, upon leaving the meeting he did say "I wonder how those suicide bombers feel?". asked Mr. Sawkiw to contact his family physician, Dr. Ellis, to discuss his stresses at this time. also mentioned to him that Dr. Ellis would possibly refer him for psychiatric counseling [7] Following the incident, Sawkiw was interviewed by the police as set out in paragraph 19 of his supplementary affidavit sworn June 2, 1998: "19. THAT following my departure from Yorkton Physiotherapy, the Police attended at the Physiotherapy Centre where was interviewed and explained to them the situation as have to the Court in my Affidavit, about my frustration over being hit by drunk driver and having no insurance coverage, my life being disrupted, that of my wife being totally disrupted, me having to drive significant distance daily for the purpose of physiotherapy treatments which were giving me very little if no relief." [8] Sawkiw was clearly in the depths of despair on October 1, 1997. The extent of his despair may not have been predictable, but the evidence establishes that SGI had prior knowledge that Sawkiw was suffering from depression. concern regarding Sawkiw's emotional state is clearly identified in the report of Lornen J. Nischuk, Doctor of Chiropractic. The report was prepared following the August 19, 1997 secondary assessment conducted at the request of SGI. It is addressed to SGI and contains the following information: ... ACCIDENT HISTORY Mr. David Sawkiw, 44 year old farmer, bobcat operator, mechanic-welder, was involved in motor vehicle accident on April 14, 1997. ... He remembers being very angry at the person who hit his vehicle. PRESENT STATUS ... Another factor that aggravates his problem is thinking about his neighbor (sic) that ran into his truck. Just the mention of his neighbour causes overwhelming anger and resentment. Mr. Sawkiw believes that his neighbours (sic) drinking problems and driving will cause someones (sic) death. Mr. Sawkiw is bitter that his lifestyle has so completely changed because of this senseless accident. PERSONAL PROFILE Mr. David Sawkiw is 44 year old caucasian (sic) male. He is 5' 6" and weighs about 160 lbs. He is pleasant and easy to talk with. He smokes about half pack of cigarettes daily and hasn't drank alcohol since 1985. He is married but has no children. Shortly after getting married his wife had brain hemorrhage which resulted in her whole right side being disabled. This has left him with no one to help him with his duties. Also, he must do alot (sic) of things for his wife that she would normally do on her own if she were well. But, because of his condition, he is unable to do much and this has caused alot (sic) of stress, frustration, depression and anger. He doesn't sleep well, he finds himself eating too much and is upset about gaining weight. He has been fighting and arguing with his wife more frequently. There are things to do but no one to help do them. They burn wood to heat their house and the wood supply is low. The yard is very unkept and so is the house. The house also needs to be reshingled. ... His other concerns, that he asked; will he ever get better in regards to his headaches. How will he take care of his wife? QUESTIONNAIRE RESULTS On the Neck Disability Questionnaire, he scored 62% disabled. With total of 15 on the depression scale, this indicates moderate degree of depression. On the Stress Event Scale, he scored 308. This rates 50% to 80% chance of illness. The events that he checked off included personal illness, financial status (foreclosure), change of work abilities, marital arguments, loans and work responsibilities. 3. possible post-traumatic stress disorder. He has lot of anxiety overiding (sic) psychosocial stresses and concerned degree of depression. ... RECOMMENDATIONS 2. Referral to psychologist for evaluations for concerns of depression. [9] Despite the recommendation of SGI's assessor, there is no evidence that prior to October 1, 1997 SGI made any arrangements for Sawkiw to receive psychological evaluation or any treatment for his depression or that he refused any opportunity for such assistance. [10] As result of the October 1, 1997 incident, Sawkiw was discharged from the physiotherapy clinic in Yorkton "for inappropriate behaviour" and on October 16, he was sent letter by SGI advising that he had been referred to Wascana Rehabilitation Centre ("Wascana") in Regina for secondary/tertiary assessment. The assessment was scheduled for October 23 and 24. The letter was explicit that failure to attend without valid reason could result in termination of benefits. [11] On October 17 or 18 Sawkiw received notice of possible welding job in Edmonton, Alberta. On October 18 he wrote letter to SGI advising that he was unable to attend Wascana on October 23 as he had pending job interview in Alberta. Sawkiw went to Edmonton, secured the job and worked there until February, 1998 when his position became redundant. Sawkiw then returned to Saskatchewan. [12] Sawkiw's benefits were terminated October 23, 1997. registered letter advising him of the termination was sent October 31, 1997. On November 17 he sent letter to SGI stating he disagreed with its decision to terminate his benefits and requesting an review of the decision. On January 16, 1998 letter of explanation from SGI was sent to him. The letter begins: "RE: Application for Review Our File: Y2478593 Please be advised that we have now completed our review. We remain of the opinion that your benefits under the Personal Injury Protection Plan were appropriately terminated. Please let us [13] The letter then briefly recites most of the same facts that are more fully set out herein followed by list of the eight conditions set out in s. 185 of the Act under which SGI may refuse to pay benefits or reduce the amount of benefits. After these eight reasons are listed, the SGI review officer concludes: "In view of this, feel the action of terminating your benefits was appropriate." No further explanation is given and the letter does not indicate which of the enumerated eight grounds SGI was relying on as the basis for terminating Sawkiw's benefits. [14] On the hearing of this application SGI indicated that it terminated Sawkiw's benefits pursuant to subsections (d), (e), (f), (g) of s. 185 under which it is authorized to do so where the person: "(d) without valid reason, neglects or refuses to undergo and examination by practitioner, or interferes with an examination by practitioner, requested or required by the insurer; (e) without valid reason, refuses, does not follow or is not available for treatment recommended by practitioner and the insurer; (f) without valid reason, prevents or delays recovery by his or her activities; (g) without valid reason, does not follow or participate in rehabilitation program made available by the insurer;" [15] SGI contends that the termination was appropriate because Sawkiw was not available for recommended treatment, did not follow or participate in rehabilitation program, or neglected or refused to undergo an examination. It argues that Sawkiw failed to comply with recommended treatment in two ways: "First, he caused his early discharge from the Yorkton Physiotherapy Secondary Treatment Centre; and secondly, he failed to attend scheduled assessment at Wascana Rehabilitation Tertiary Centre." According to SGI, the only issue is whether or not Sawkiw had "valid reason" for his failures. [16] Sawkiw's reasons for not attending at Wascana are set out in his October 18, 1997 letter to SGI: "RE: Your letter October 16, 1997 regret to inform you that will not be attending the secondary assesment (sic) at the Wascana Rehab. Centre. will be going to Alberta tomorrow a.m. for job interview. The reason being that can no longer persue (sic) my present carreer (sic) due to the headaches from the accident. Hopefully I'll be able to start all over with something new. simply cannot continue with your programs keep the farm going, the money you pay is just not enough. My car is worn out will not last much longer, cannot afford new one. My farm work custom work has been falling back since the accident, cannot catch up. cannot afford to pay any one to help me out. have already used up most of the favours from friends, neighbors (sic) and relatives. As you know my wife is disabled cannot find employment to help out. If your "rules" determine that you discontinue my benefits, it just proves how the Government's "system" has failed again. Hit by disqualified drunk, now will likely loose (sic) the farm. Thank you for all the [17] It is apparent that Sawkiw realized that he risked losing his benefits under the Act if he failed to attend his October 23 appointment at Wascana. It is equally apparent that on October 18 Sawkiw believed that he was in desperate and precarious financial position and that his only option was to seize the opportunity for off- farm employment. SGI contends that looking for alternate work because his injuries prevented him from continuing with his farming operation is not valid excuse for Sawkiw's failure to attend his scheduled assessment at Wascana. In this regard, SGI submits that it was paying Sawkiw partial income replacement benefit to compensate him for those duties he was unable to perform on the farm and that it was facilitating proper treatment to assist him in returning fully to his pre-accident farming activities. The court does not agree with either submission. [18] The evidence establishes that as at October 23, 1997 SGI was only paying Sawkiw partial income replacement benefit. This may have been sufficient prior to September 24 but as of that date, SGI was requiring Sawkiw to attend daily physiotherapy of to hours duration with approximately 22 hours of additional travel time. It is common knowledge that pain can be exhausting; that daily physiotherapy can be exhausting; that daily travel of 22 hours can be exhausting; that the physical demands of farming can be exhausting; and, that the mental demands of managing farm and coordinating and organizing the work of others on the farm can be exhausting. In these circumstances, it is far from clear as to how SGI expected Sawkiw to devote approximately to hours per day to his treatment program and still have the mental and physical reserves to devote any time or energy to his farming operations.  As at September 24, 1997 Sawkiw could onlyreasonably be expected to participate in daily physiotherapyin Yorkton if he was receiving a full, rather than partialincome replacement benefit. Also, as at August 29, it was apparent that Sawkiw required psychological or other similar type services to deal with his depression and anger. Undoubtedly, the depression and anger were not caused by the accident but Dr. Nischuk's report to SGI clearly identifies psychosocial issues as barriers to Sawkiw's recovery. He may have been coping with his various stresses up to the time of the accident but the accident appears to have been the proverbial last straw. By October 1, 1997 Sawkiw was in the depths of despair and the evidence confirms that the injuries sustained in the motor vehicle accident were contributing factor. Although the clock can not be turned back, it is very possible that if Sawkiw had been receiving appropriate psychological assistance and full rather that partial income replacement benefit, that he may not have felt forced to abandon all efforts at rehabilitation intended to assist him in ultimately carrying on his pre- accident employment in order to take up alternate employment in Alberta. [19] Based on the foregoing, the court is not prepared to find that Sawkiw caused his early discharge from the Yorkton Physiotherapy Secondary Treatment Centre or failed, without valid reason to attend his scheduled assessment at Wascana. To the contrary, the court finds that SGI\'s failureto make a suitable rehabilitation program available toSawkiw prior to October 1 and its failure to reassess hislevel of income replacement benefits as at September 24were significant factors that contributed to Sawkiw\'sdesperate circumstances in October, 1997 and resultingconduct on October 1 and thereafter. The court thereforefinds that SGI was not entitled to terminate Sawkiw\'sbenefits pursuant to s. 185(d), (e), (f) or (g). Accordingly, pursuant to s. 198(3)(a), the termination made by SGI under s. 185 is hereby set aside. [20] When SGI terminated Sawkiw's benefit's pursuant to s. 185, it had not received notification from Sawkiw that he was employed full time in Alberta. Sawkiw was required under s. 175 of the Act to keep SGI informed of such change in circumstances. Section 129(1)(e) is relevant to this change and provides: "129(1) Notwithstanding any other provision of this Division, victim ceases to be entitled to an income replacement benefit when any of the following occurs: ... (e) the victim holds an employment from which the gross yearly employment income is equal to or greater than the gross yearly employment income on which victim's income replacement benefit is calculated." No evidence was lead to establish that Sawkiw's employment income in Alberta was equal to or greater than the gross yearly employment income on which his income replacement benefit was calculated. Nevertheless, the court is prepared to so find. Accordingly, pursuant to s. 198(3)(b), the courtfinds that in accordance with s. 129(1)(e) Sawkiw\'s incomereplacement benefits are properly terminated effective thefirst day of his employment in Alberta. However, for reasonspreviously stated, for the period September 24, 1997 to thedate of termination pursuant to s. 129(1)(e) the court findsthat Sawkiw was entitled to be paid a full incomereplacement benefit without adjustment for a partial returnto work. SGI shall therefore pay to Sawkiw the difference,if any, between the amount paid to Sawkiw for the periodSeptember 24 to October 23, 1997 and the amount required tobe paid pursuant this judgment for the period September 24to the date of Sawkiw\'s commencement of employment inAlberta. Sawkiw shall also be entitled to interest on suchamount from the date such additional benefits should havebeen paid until the date of this judgment. Sawkiw shall be responsible for providing SGI satisfactory evidence as to the commencement date of his employment in Alberta. [21] Sawkiw's employment in Alberta has been terminated. The employment was not terminated because of Sawkiw's injuries sustained in the motor vehicle accident. Nevertheless, the termination has resulted in Sawkiw returning to Saskatchewan and presumably to his pre-accident employment. There is no medical evidence as to his current condition but Sawkiw believes that he continues to have an ongoing disability. He seeks the opportunity to be reviewed by Wascana. In all of the circumstances, the court is prepared to permit him that review. SGI will thereforearrange for Sawkiw to forthwith be assessed by Wascana. Ifit is found that as a result of the accident, Sawkiw iscurrently unable to hold the employment that he held at thetime of the accident, SGI is encouraged to consider Sawkiw\'scondition as a relapse under s. 142(1)(a) of the Act. In this regard, it is to be noted that under the terms of this judgment, Sawkiw's final income replacement benefit will be an income replacement benefit other than one made pursuant to section 139 or 140. [23] Sawkiw shall be entitled to his solicitor and client costs respecting services rendered and disbursements incurred from the date of filing his notice of motion to the date this judgment is received. He shall also be entitled to his costs associated with preparing and filing his notice of motion which costs are set at $600.00 being the maximum amount payable under The Personal Injury Benefits Regulations. J.L.G PRITCHARD, J.
An application pursuant to s197 of the Automobile Accident Insurance Act for an order setting aside SGI's termination of the applicant's income replacement benefits. The applicant suffered soft tissue injuries to his cervical spine when his vehicle was struck from behind by an uninsured driver. He received a partial income replacement benefit from SGI on the basis he was not able to perform some but not all of his farm duties. HELD: 1)SGI was not entitled to terminate Sawkiw's benefits pursuant to s185(d), (e), (f) or (g). SGI's failure to make a suitable rehabilitation program available to Sawkiw prior to October 1/97 and its failure to reassess his level of income replacement benefits as at September 14 where significant factors contributing to his desperate circumstances. SGI was requiring Sawkiw to attend daily physiotherapy of 3 to 4 hours duration with approximately 2-1/2 hours of additional travel time. It is common knowledge that pain can be exhausting; that daily physiotherapy can be exhausting; that daily travel of 2-1/2 hours can be exhausting; that the physical demands of farming can be exhausting; and, that the mental demands of managing a farm and coordinating and organizing the work of others on a farm can be exhausting. It was far from clear how SGI expected Sawkiw to devote approximately 6 to7 hours per day to his treatment program and still have the mental and physical reserves to devote any time or energy to his farming oprations. He could only reasonably be expected to participate in daily physiotherapy if he was receiving a full, rather than a partial income replacement benefit. 2)The benefits were properly terminated pursuant to s129(1)(e) the first day of his full time employment in Alberta. However, from September 14/97 to the date of termination Sawkiw was entitled to be paid full income replacement benefit without adjustment for a partial return to work. Sawkiw was entitled to the difference and interest from the date such additional benefits should have been paid until the date of this judgment. 3)SGI was to arrange for an assessment by the rehabilitation centre forthwith. If it is found that as a result of the accident Sawkiw is not able to hold the employment he held at the time of the accident, SGI is encouraged to consider his condition as a relapse under s142(1)(a). Under the terms of this judgment the final income replacement benefit will be other than one made pursuant to s139 or 140. 4)Sawkiw was entitled to his solicitor and client costs respecting services rendered and disbursements incurred from the date of filing his notice of motion to the date this judgment is received. He was also entitled to his costs associated with preparing and filing his notice of motion set at $600 being the maximum amount payable under the Personal Injury Benefits Regulations.