March 23, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Ivanovic and Allstate
Date of Decision: February 12, 2018
Heard Before: Adjudicator Marcel Mongeon
CAT IMPAIRMENT: Applicant has little education and is illiterate in English; applicant shows marked impairment in one domain; applicant is CAT impaired
Mr. Ivanovic was injured in a car accident on January 30, 2014 and sought accident benefits from Allstate however, when the parties were unable to resolve their disputes through mediation Mr. Ivanovic applied for arbitration at the FSCO.
- Did Mr. Ivanovic sustain a CAT impairment within the meaning of the Schedule?
- Is Mr. Ivanovic entitled to receive a weekly IRBs in the amount of $326.00 per week?
- Is Mr. Ivanovic entitled to receive a medical benefit in the amount of $5,005.45 for OT services and assistive devices dated June 15, 2015?
- Is Mr. Ivanovic entitled to attendant care benefits in the amount of $2,036.27 per month from January 30, 2014 to date and ongoing?
- Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Ivanovic?
- Is Mr. Ivanovic entitled to interest for the overdue payment of benefits?
- Mr. Ivanovic did not suffer a CAT impairment as a result of the accident.
- Mr. Ivanovic is entitled to receive a weekly IRBs in the amount of $326.00 per week, less amounts paid, from February 6, 2014 to date and ongoing.
- Mr. Ivanovic is not entitled to the claimed medical benefit.
- Mr. Ivanovic is not entitled to the claimed attendant care benefits.
- Mr. Ivanovic is not entitled to a special award.
- Mr. Ivanovic is entitled to interest at the rate of 1% per month on any unpaid benefits.
Mr. Ivanovic driving his car when he was “T-boned” on the driver’s side by another vehicle at approximately. His airbags deployed. Mr. Ivanovic had difficulty recalling the period of time immediately following the accident and may have lost consciousness. The collision caused Mr. Ivanovic to strike the interior of his car on his left side causing injuries. Mr. Ivanovic was taken by ambulance to the hospital and discharged from the evening of the accident and advised to follow-up with his family physician.
Mr. Ivanovic was born in Montenegro in 1962 and immigrated to Canada in 1987. Mr. Ivanovic’s education is grade 8 in an Eastern European schooling system. He was separated with three children approaching adulthood. He has a grade eight education and his native tongue is Albanian. He fluent in English although he indicated very poor to no fluency in reading or writing English. He worked full time at an auto plant as an assembler. He was always on his feet and would regularly lift heavy objects weighing up to 40 pounds.
Immediately prior to the MVA, Mr. Ivanovic had lower back pain reports with his employer. Mr. Ivanovic also had a record of WSIB and disability claims with Ford.
Since the MVA, Mr. Ivanovic notes his condition has been deteriorating. His most significant complaint is of pain. He tries to control the pain with Tylenol 3 and recreational alcohol. The pain affects his left shoulder and fingers. His left arm is sore from his neck to his hand. Mr. Ivanovic’s pain gets worse if he walks too much. The pain is worst in his head and shoulder. Mr. Ivanovic acknowledges back pain post-MVA. He is also very sat, and has memory difficulties and trouble with concentration.
Mr. Ivanovic does not perform any chores or duties around the house. He does drive short distances on his own. He has also taken at least two trips to Eastern Europe after the MVA. On these trips he was accompanied by relatives and he was visiting relatives.
The Adjudicator found Mr. Ivanovic and his brother credible and their testimony relating to changes noted in Mr. Ivanovic’s personality and general demeanour was unshaken on cross-examination.
The family physician’s testimony is compelling. She notes that Mr. Ivanovic since the MVA complains of headaches, and neck pain, and is depressed. He has gained 30 to 40 pounds and is drinking more than he should be. With respect to the back pain, pre- and post-MVA, the family physician notes his pain is no longer in the lower back which was the case pre-MVA but is in the neck and upper back including the trapezius. She has diagnosed Mr. Ivanovic with post-concussion syndrome. In her clinical notes, the family physician expressed an important observation on a note. After a record of notes relating to Mr. Ivanovic’s continuing impairments, on February 13, 2015, she writes “I am convinced that [Mr. Ivanovic] will never return to FORD!”.
Mr. Ivanovic became engaged in November 2014. Mr. Ivanovic’s fiancée indicates that she felt more pity than love for him. The fiancée provides certain care functions for Mr. Ivanovic. She organizes his pills on a weekly basis; she clips his toenails. She tries to organize his time. When the fiancée took a trip to Eastern Europe in June of 2015, she hired someone who was paid $850 to look after Mr. Ivanovic. The fiancée has had two children by Mr. Ivanovic since the MVA. Neither was planned by the couple. The first child was born on November 27, 2015; the second on February 9, 2017. Mr. Ivanovic did not attend either birth. He does not help with childcare nor does the fiancée trust him to leave children alone with him. Mr. Ivanovic has little to do with any of the children in the home. Although in some of the surveillance pictures presented with his small children, Mr. Ivanovic seems to be joyful, in other pictures, it is difficult to see any joy.
A factual complication has been the acquisition by the fiancée of two bars in Hamilton. One has been recently acquired and was not a factor in the Hearing. Both bars include the name “Tom”, Mr. Ivanovic’s name. The fiancée has indicated that although these are her sole businesses, she named them after Mr. Ivanovic, so he could have something that he could feel good about.
Allstate commissioned surveillance of Mr. Ivanovic at the fiancée’s first bar. Mr. Ivanovic spends a great deal of time at the bar. He also appears to provide some assistance in the business such as running errands with bank deposits, bringing in ice and similar tasks. One of the still photographs shows him behind the bar speaking to what I would presume are patrons. Although he has appeared behind the bar in the surveillance evidence, none of the surveillance shows him pouring drinks, serving food, making cash or otherwise performing any functions that would be expected of an employee. The actions are not inconsistent for someone related to the owner of the bar. An employee of the bar made it clear that the bar belongs to the fiancée and Mr. Ivanovic only comes in because the fiancée does not like to leave him home by himself. The witness commented that Mr. Ivanovic does not seem to have any interests or hobbies outside of coming to the bar. The fiancée was much blunter. When asked why she would take Mr. Ivanovic to her bar, she answered that it was cheaper that he should drink at her bar rather than somewhere else. She acknowledges that Mr. Ivanovic has trouble managing his alcohol intake but suggested it is easier to manage him at a bar she controls.
The Adjudicator reviewed the volumes of conflicting medical testimony, and the surveillance videos. The Adjudicator noted that Mr. Ivanovic is seen at the fiancée’s bar for hours at a time, but contrary to Allstate’s position he was not managing various and complex work functions. Mr. Ivanovic was principally sitting on a barstool. He was not serving alcohol or food or taking cash, which would have been expected if he was working there.
Mr. Ivanovic submits that he was substantially injured in the MVA and his impairments are sufficient that he should be entitled to a declaration of CAT impairment as well as a finding of his entitlement to IRBs. To further support his claim for IRBs, he points to his having been declared entitled to long term disability benefits and a CPP disability pension. Mr. Ivanovic further submits that he should be entitled to an attendant care benefit based on his fiancée’s assistance and that she has suffered an economic loss by providing that assistance. He seeks the medical and assistive devices benefit as appropriate for the occupational therapy devices recommended. Finally, he seeks a special award on the basis that Allstate improperly delayed paying him these benefits.
Allstate submits that the MVA is not the root cause of his current difficulties, and points to the many reports suggesting a sub-maximal effort on the part of Mr. Ivanovic in presenting himself to assessors. Allstate also couples this with copious surveillance evidence to suggest that Mr. Ivanovic is not hindered in his lifestyle but is rather able to assist his fiancée in running her business and is seeking to make that with his sub-maximal effort on assessments.
Mr. Ivanovic can be determined to be CAT impaired in one of two ways: the first, which is not applicable given Mr. Ivanovic’s own reports, is on the basis of a whole body impairment percentage. The second, and most relevant, is through an assessment of Mr. Ivanovic’s functioning in four domains. In order to prevail, Me. Ivanovic need only demonstrate marked impairment in one of the four domains of function set out in the AMA Guidelines. The four domains of functioning are: a) activities of daily living; b) social functioning; c) concentration, persistence and pace; and d) deterioration or decompensation in work or work like settings. Domain d) is sometimes also referred to as adaptability.
Based on the evidence presented, the Adjudicator concluded that Mr. Ivanovic does have a mental disorder. And although there is significant evidence of depressive tendencies and a change in personality, Mr. Ivanovic has not provided evidence of how this has impeded his functioning. The Adjudicator could not find that in any of the four domains Mr. Ivanovic suffers from more than a moderate impairment at all. He may be limited in some useful functioning; he is not limited in all or a significant portion of useful functioning. Mr. Ivanovic is not CAT impaired.
There are two relevant rules and periods for an IRB in this case. The first rule – applicable to the first 104 weeks post-MVA – is that Mr. Ivanovic “suffers a substantial inability to perform the essential tasks of his … [pre-MVA] employment.” The second – applicable after the first 104 weeks – is that “as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
The Adjudicator is satisfied in the MVA something did happen to Mr. Ivanovic. There is even proof in some of Allstate’s assessments to this effect. The most significant witness on this issue is the family physician. She is an expert trained in medical care; she has had many visits with Mr. Ivanovic over time spanning both before and after the MVA and she provides me with her view that Mr. Ivanovic is incapable of going back to work at Ford.
Mr. Ivanovic’s prospects for re-employment are bleak. He is unlikely to find any position that allows him to sit and does not require higher language skills. Although the surveillance suggests that he might possibly be suited to bar work that is really not a comparable position. His employment status and income as an Assembler at Ford would be a great deal higher than the minimum wage and tips that would be achieved in the hospitality sector. Retraining would not seem to be an option either. Again, language and personality would likely get in the way of allowing Mr. Ivanovic to restart in some other field.
As there is no employment available for Mr. Ivanovic, he is entitled to both pre-104 week and post-104 week IRBs.