Insured's testimony contrary to family doctor's records and employment records.

May 28, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: May 12, 2016

Heard Before: Adjudicator Jessica Kowalski

AG was hurt in a car accident on May 28, 2011 when he was driving his minivan and a vehicle coming in the opposite direction made a left turn and struck his minivan on the driver’s side.  AG’s airbags deployed and his minivan was written off.  Paramedics took AG to Scarborough Hospital by ambulance, where he was seen in the emergency department.  He applied for and received statutory accident benefits from Wawanesa who then terminated weekly income replacement benefits effective July 14, 2012 and denied funding of certain treatment and assessment plans on the basis that AG’s injuries did not prevent him from working and were predominantly minor. The parties were unable to resolve their disputes through mediation and AG applied for arbitration at the FSCO.

The issues in this hearing are:

1. Is AG entitled to an IRB of $349.66 per week from July 14, 2012 to date and onwards?

2. Is AG entitled to receive a medical/rehabilitation benefit for the following:

   1. $1,961.16 for an exercise program recommended?

   2. $650.00 for orthotics recommended?

   3. $1,716.13 for a work hardening program?

   4. $290.09 toward the cost of prescription medications submitted by OCF-6?

3. Is AG entitled to the cost of the following examinations:

   1. $2,050.00 for a psychological assessment?

   2. $2,200.00 for a TMJ assessment?

   3. $2,200.00 for an orthopaedic assessment?

   4. $1,220.00 for an MRI?

   5. $2,500.00 for an orthopaedic assessment?

4. Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to AG?

5. Is AG entitled to interest for the overdue payment of benefits?

Result:

1. The application for arbitration is dismissed.

2. The issue of expenses is to be resolved by the parties or by a hearing pursuant to section 79 of the Dispute Resolution Practice Code.

At the hospital AG was treated for soft tissue injuries and released with a prescription for Percocet.  He had xrays of his neck, back and chest.  All were normal.  AG attributes most of his problems to the accident.  Although AG had pain after a previous car accident in 2006, most of his pain had resolved by the time of the 2011 accident.  Despite residual pain in his neck, shoulders and back, AG had returned to work and was functioning without pain medication.  He says that the 2011 accident exacerbated his pre-accident pain, especially the unresolved back pain, and left him anxious, depressed and in too much pain to work.  He says his accident-related impairments made him an undesirable partner to his wife in Kosovo which caused the breakdown of their marriage.

Wawanesa categorized AG’s impairments as a “minor injury”. AG maintains his injuries are not predominantly minor, or that, if they are, he has compelling evidence of pre-existing physical and psychological impairments that would take him out of the Minor Injury Guideline (the “MIG”).

Wawanesa submits that AG’s accident related impairments are limited to soft tissue injuries and that there is no compelling evidence of a pre-existing condition that would take him out of the MIG.  Wawanesa submits that AG has a history of exaggeration, that his evidence is unreliable, that he was working when he says he was not, and that he did not exhaust even the pre-approved treatment available to him under the MIG.

At the time of the accident, AG was working as a box labeler, labelling product boxes of varying sizes and weights in a factory setting on a production line.  His work involved standing, bending and twisting, and lifting packages of boxes that sometimes weighed up to 25 or 30 lbs. AG applied for IRBs in March 2012, certifying that his accident-related injuries prevented him from working from the day of the accident. To be entitled to IRBs AG must establish that he was employed at the time of the accident and that, as a result of and within 104 weeks of the accident, he suffered a substantial inability to perform the essential tasks of that employment. In order to be entitled to IRBs more than 104 weeks after the accident, AG must prove that, as a result of the accident, he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

Wawanesa paid IRBs from February 2012 until July 14, 2012, when it terminated benefits on the basis of a multidisciplinary insurer examination report which concluded that AG was not disabled from working and that the injuries he sustained in the accident were minor soft tissue injuries.

There is no doubt that AG has significant health challenges, many owing to a post-accident diagnosis relating to a compromised immune system that is unrelated to the accident itself.  By the time of the hearing, AG presented as a person who is suffering.  However, the Arbitrator found that he has failed to prove that the 2011 accident caused an inability to perform the essential tasks of his employment, a complete inability to do any work for which he is reasonably suited, or that his accident-related impairments are not predominantly a minor injury.

The most credible testimony came from AG’s doctors. They all concurred that the injuries were not severe and that AG should attend physio and keep fit. AG complained that attending physio was too painful, yet during the same period travelled by plane overseas without medication or medical aid.

In a case that turns on credibility, discrepancies in AG’s reports to his family doctor, and between his testimony and employment-related records take on greater significance because they are at the heart of the IRBs in dispute.  These discrepancies make AG’s testimony unreliable where it is not corroborated by other evidence.  In this case, the documented evidence relating to AG’s employment directly contradicts his oral representations.  The Arbitrator found that AG’s testimony is unreliable and contradicted by his family doctor’s records and employment and income tax documents; and that he therefore has not proved that, on balance, the accident left him unable to perform the essential tasks of his pre-accident employment or completely unable to engage in any employment for which he is reasonably suited.

About Deutschmann Law

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.