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Insured able to show accident related injuries resulted in need for farm hand.

December 14, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Marvin Huberman

Date of Decision: September 11, 2014

 

REASONS FOR DECISION

 

Issues:

 

Domenic Padula was injured in a car accident on February 4, 2007. He was stopped at a red light when he was rear ended by a car travelling 60-70 km/h. His car was a write off. Mr. Padula sustained a fracture to his cervical spine (C5 vertebral body). At the time of the accident Mr. Padula ran a small market farm. Mr. Padula now operates an organic farm in Nova Scotia. Medical records indicate he had been in good health in the past with no physical limitations. He had a history of some arthritis, and back problems. As a result of the accident, he applied for and received statutory accident benefits State Farm.

 

State Farm denied certain benefits and the case ended in arbitration before FSCO.

 

The issues in this hearing are:

 

  1. Is Mr. Padula entitled to receive rehabilitation benefits under section 15 of the Schedule, for the following expenses claimed by him:

    1. A general farm hand for nine months of the year;

    2. A compact tractor;

    3. A hot tub and installation;

    4. A tent trailer for camping.

  2. Is Mr. Padula entitled to interest for the overdue payment of benefits?

 

Result:

 

  1. Mr. Padula is entitled to receive a rehabilitation benefit for a general farm hand;

  2. Mr. Padula is not entitled to receive rehabilitation benefits for:

    1. A compact tractor;

    2. A hot tub and installation;

    3. A tent trailer for camping;

  3. Mr. Padula is entitled to interest at the rate of 2 per cent per month compounded on overdue payments;

 

The Accident

 

Mr. Padula suffered a broken neck and was prescribed a hard cervical collar. Within a couple of days of the accident, Mr. Padula saw his family physician, Dr. AK.  He was prescribed medications and advised to continue with the neck collar.  Although his neck appeared to be the focus of his treatment and investigations, he also experienced significant pain in his lower back.  Following the accident he attended physiotherapy and at that time the doctors concluded that Mr. Padula had ongoing mechanical neck pain which may require surgical interventions a year or more down the road. The conclusion was also made that he would be left with ongoing mechanical back pain. The physician concluded that there was a high probability of permanent impairment with respect to his neck and lower back.

 

After three years of treatment, physicians concluded that there was no expectation of improvement. The physician also noted that risk of deterioration of his condition was high, and that his injuries were permanent. It was suggested he would require the assistance of a farmhand to continue his farming work. The reports of occupational therapists agreed with the injuries were permanent and would likely require surgical intervention with time. The occupational therapist concluded that Mr. Padula is substantially disabled from performing in all aspects of his occupational performance. Numerous other medical assessments concurred with these opinions.

 

In light of the fact that Mr. Padula had purchased a farm in Nova Scotia shortly before the accident this diagnosis was indeed a serious limitation for his future prospects as an organic farmer.

 

Mr. Padula submitted rehab claims for a variety of items including a cervical pillow, orthopaedic mattress, hot tub with installation and chemicals, a compact tractor, a tent trailer, and a general farm hand for 9 months each year.

 

State Farm required Mr. Padula to attend IEs with an OT and an orthopedic surgeon. On the basis of their reports it approved payment for the pillow and mattress only.  State Farm maintains that the rest of the items are rehabilitative and/or reasonable and necessary within the meaning of Section 15 of the Schedule.

 

The Adjudicator outlined the law. The burden of proof rests with Mr. Padula.  He must prove on the balance of probabilities that he is entitled to each benefit claimed. He reviewed section 15 of the Act, and previous cases. The Adjudicator determined that the overall weight of the medical and non-medical evidence supports a conclusion that at the time of the submission of the Treatment and Assessment Plan at issue, Mr. Padula had not returned to his pre-accident status and he was in need of rehabilitation benefits as a result of his accident-related injuries.

 

The Adjudicator ruled that the pre-existing injuries Mr. Padula had did not affect his ability to carry out his work before the accident, or impact his life. He thus rejected State Farm’s assertion that the pain which Mr. Padula experienced during all four years post-accident was due to something that pre-dated the accident.

 

The Adjudicator also determined that based on the overall weight of the evidence Mr. Padula’s claim for a general farm hand is a reasonable and necessary measure undertaken and incurred by or on behalf of Mr. Padula to reduce or eliminate the effects of his pain resulting from his impairments sustained as a result of the accident. The Adjudicator determined that Mr. Padula is entitled to interest under subsection 46(2) of the Schedule, regardless of whether the payment of the subject benefit became overdue before or after September 1, 2010.

 

The Adjudicator reviewed the submissions of Mr. Padula and State Farm and determined that a compact tractor was not reasonable or necessary, nor were the hot tub, or tent trailer.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Fractures, Pain and Suffering, Physical Therapy, Treatment

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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 toll-free at 1-866-414-4878.

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.

Practice Areas

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  4. Catastrophic injury
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  5. Fractures or broken bone injury
  6. Pedestrian accidents
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  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

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