July 24, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Cohen and Aviva
IRBs and Housekeeping: Expenses denied as applicant is not reliable in testimony; applicant fails to provide accurate testimony or evidence.
Date of Decision Date: May 31, 2017
Heard Before: Adjudicator Jeffrey Musson
Mr. Moses Cohen was injured in a car accident on March 28, 2006 and sought accident benefits from Aviva however, when the parties were unable to resolve their disputes through mediation Mr. Cohen applied to the FSCO.
- Is Mr. Cohen entitled to Income Replacement Benefits (“IRBs”) at the rates of $182.12 per week from April 4, 2006 until March 28, 2008 and $185.00 per week from March 29, 2008 to date and on-going?
- Is Mr. Cohen entitled to Housekeeping and Home Maintenance Benefits for the period from March 28, 2006 until March 28, 2008?
- Is Mr. Cohen entitled to interest for the overdue payment of benefits?
- Mr. Cohen is not entitled to IRBs.
- Mr. Cohen is not entitled to Housekeeping and Home Maintenance Benefits.
- Mr. Cohen is not entitled to interest for the overdue payment of benefits.
Mr. Cohen speaks, reads and writes in English, Spanish, French, Hebrew and Arabic. He is married and has 10 children with his wife. The car he was driving was hit on the front driver’s side at approximately 50 km/h. Mr. Cohen was transported from the scene of the accident by ambulance and was taken to North Central Hospital, where he complained of pain in his right shoulder. At the hospital, x-rays were taken, which all came back as normal. Mr. Cohen was discharged later the same day. He was instructed to visit his family doctor. Mr. Cohen was given Tylenol at the hospital to relieve the pain he was experiencing.
Approximately 1 month after the accident on April 30, 2006, Mr. Cohen went to see his family doctor, Dr. Warner. According to Dr. Warner’s clinical notes and records, there were only two other follow-up visits related to the MVA, which occurred in July and December of 2006. In reviewing Mr. Cohen’s medical records, it was noted that Mr. Cohen had numerous, well-documented pre-existing medical issues prior to the accident.
Mr. Cohen was an experienced salesman and also had numerous business investments. He was asked as part of his testimony to state the ages of his children which he could not remember. Mr. Cohen confirmed that at the time of the accident, only 4 of the 10 children were considered dependents and still living at home. Mr. Cohen strictly adheres to the teachings of Orthodox Judaism. He faithfully attends his synagogue for prayer service, and is active in the synagogue’s community. Since the accident, he testified that he has not been as active due to his injuries. Prior to the accident, Mr. Cohen stated that he was active and played basketball, soccer, and liked to occasionally swim for exercise. He is not as active as he was prior to the accident.
Mr. Cohen was asked questions about his lengthy pre-existing medical issues. Mr. Cohen testified that he began seeing his current family doctor, in 2005. Clinical notes and records showed that Mr. Cohen didn’t see him until approximately 1 month after the accident, on April 30, 2006. Since the accident, Mr. Cohen testified that he now has pain in his shoulder which was not there prior. He also testified that the pain in his back and neck is now chronic since the accident. In addition, he now has been diagnosed with a frozen shoulder. Mr. Cohen also testified that he has sleep issues since the accident, and as a result, he gets up 2-3 times per night.
After the accident, Mr. Cohen attended massage therapy, chiropractic and acupuncture treatments for pain in his shoulder and his back. After a while, he only continued with acupuncture treatment. Mr. Cohen testified that Dr. Warner said, “if acupuncture feels good and it is reducing your pain, keep doing it”. Mr. Cohen was asked as part of his testimony how many times he visited his family doctor with regards to issues related to the accident. Dr. Warner’s clinical notes and records showed that Mr. Cohen only had 3 visits specifically related to the MVA in April, July and December 2006. When asked by Insurer’s counsel if he agreed with these dates, Mr. Cohen became agitated and angry, saying “How is he supposed to remember dates?” Mr. Cohen was asked why his family doctor’s clinical notes and records, between July 2006 and the beginning of January 2008, did not show any pain issues or impairments related to accident. Mr. Cohen replied that he did not know why there were no accident related pain issues documented. He testified that he has suffered from pain continuously since the accident.
Mr. Cohen was asked by Insurer’s counsel to explain why, if he was suffering from continuous pain since the accident, did he delay submitting his accident benefit forms to the Insurer after the accident? He could not explain the lapse in time, and as with his testimony prior, he again became agitated and angry at the question being asked. Mr. Cohen then testified that the delay in submitting the forms could have been explained because he did not know how to fill out the insurance forms. As a result, he had his wife fill out the forms on his behalf. However, Mr. Cohen later contradicted himself and testified that he filled out his forms. The Insurer had sent Mr. Cohen a letter approximately one week after the accident, on April 6, 2006, explaining his accident benefit claim and how to fill out the forms. Mr. Cohen testified that he could not remember receiving this letter.
The Arbitrator reviewed all of Mr. Cohen’s evidence, noting that much of it was contradictory and that Mr. Cohen lacked credibility. Mr. Cohen did not provide evidence required to Aviva or the tribunal. The Arbitrator noted that the onus is on Mr. Cohen to prove his case, and specifically as it related to the issues of IRBs (both pre-104 and post-104) and Housekeeping and Home Maintenance Benefits. Mr. Cohen failed to provide sufficient evidence to meet these thresholds, and did not show a direct connection between his claim for accident benefits and the accident itself.
Mr. Cohen’s credibility undermined his case. He didn’t submit evidence at this Hearing that would be necessary to reasonably prove that he was receiving earned income versus investment income prior to the accident, and investment income versus business income after the accident. Without earned income prior to an accident, IRBs cannot be calculated and are thus not payable. In terms of Housekeeping and Home Maintenance Benefits, there was no credible evidence submitted that Mr. Cohen preformed any significant housekeeping and home maintenance work at his residence pre- or post-accident. In addition, there was no credible evidence showing that anyone was paid for housekeeping and home maintenance services post-accident. Therefore, Housekeeping and Home Maintenance Benefits are not payable.
For these reasons, the Arbitrator found that Mr. Cohen failed to prove his case, and as a result, all claims in dispute are denied.