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Arbitrator May Award Interim Income Benefits

October 14, 2008, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: Joyce Miller

Decision Date: September 25, 2008

Jose Escobar Uribe was injured in a motor vehicle accident on December 11, 2006. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company. Wawanesa terminated weekly income replacement benefits on May 2, 2007. The parties were unable to resolve their disputes through mediation.  On September 5, 2008, Mr. Uribe brought a Motion for Interim Benefits.

The following report looks at prior cases and the law similar to Mr. Uribe´s motion for interim benefits, an analysis of the evidence of Mr. Uribe´s case and the final decision by the arbitrator.

To begin, it is imperative to examine the law and prior cases similar to Mr. Uribe´s. The Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter. The Act itself does not give any guidance as to what factors an arbitrator ought to consider in deciding whether or not to exercise this discretion in favour of an applicant. Generally, arbitrators have considered whether or not the applicant had demonstrated a compelling reason for the Commission to grant interim relief.  Also, the applicant must at least demonstrate a pretty clear case that is likely in the applicant´s favour.

Arbitrators have also generally considered whether the applicant has demonstrated some compelling need or urgency. In other words, "Is there a good reason why the applicant cannot wait until the hearing order is issued to receive any benefits (plus interest) to which he or she may be entitled?"

In the case of Saunders and Royal & Sunalliance Insurance Company of Canada, Arbitrator Wilson, in awarding the applicant interim income replacement benefits stated that "Poverty is not a pre-condition to the receipt of accident benefits. This is not a welfare scheme where parties must exhaust their assets before becoming eligible to receive payments."

The Schedule is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a "fair and adequate income stream to those who are injured and disabled from work." The victim is to receive an approximation of wages, and not be compensated more or less.

Haimov and ING Insurance Company in awarding interim attendant care benefits, Arbitrator Murray held that "`Need´ means an absence of cash flow as well as impairment of capital which would jeopardize the Applicant´s future security in order to meet day-to-day living expenses," and that "`Urgency´ does not mean that a person must be in extremis before assistance is provided."

The evidence in this motion consisted of facta from both parties, supported by documentary evidence, an affidavit sworn by Mr. Uribe and the cross-examination at the motion hearing of Mr. Uribe on his affidavit.

At the time of the accident, Mr. Uribe was not working. He had been laid off from his job in construction. He had, however, worked in the 52 weeks preceding the accident. In addition, he provided evidence that he had worked in the three years prior to the accident.

Mr. Uribe´s injuries included whiplash, low back strain, insomnia, and hypertension. The latter was noted as having been asymptomatic prior to the accident.

Despite the fact that Mr. Uribe had a significant pre-accident record of back, neck, shoulder, hand and wrist pain, wherein he received extensive physiotherapy, Mr. Uribe, nevertheless, did not take any time off from work because of his physical problems. Mr. Uribe submitted that as a direct result of the accident he had developed a chronic pain disorder, post-traumatic stress, depression and hypertension. He further submitted that as a result of his injuries from the accident, he was unable to do his previous construction work or any other work.

Mr. Uribe also submitted that he was forced to borrow money from his family. He submitted that he was in debt to his family in the amount of $18,300.00 based on a promise to repay when he received his accident benefits.

Wawanesa opposed the motion for interim benefits on the basis that Mr. Uribe was not a credible witness, that he had not provided objective evidence of his financial need, that there was a serious causation issue, and that there was competing medical evidence which can only be resolved at a full hearing.

The arbitrator did not agree with Wawanesa´s opposition to the motion.  The arbitrator found that Mr. Uribe had presented a prima facie case, as well as, compelling reasons as to why he should receive interim benefits.

First, the arbitrator found Mr. Uribe to be a credible witness. In assessing credibility there are a number of factors that an adjudicator must take into consideration. These include: the demeanour of the witness; whether there are internal inconsistencies in the testimony; whether the witness´ testimony has been contradicted by other evidence; and whether the testimony is plausible.

In addition, where there are inconsistencies and contradictions in the evidence, the adjudicator must decide when weighing and balancing the evidence, whether these inconsistencies and contradictions impugn the substantial and material elements of the claim being made, or are merely minor in nature.

In this case, the arbitrator did not find that there were any inconsistencies and contradictions that would impugn the substantial and material elements of Mr. Uribe´s claim for interim benefits.

Under a very rigourous cross-examination by Wawanesa´s counsel, Mr. Uribe provided his testimony in a very straightforward and credible manner. No material or significant contradictions were brought out in either Mr. Uribe´s affidavit or his oral testimony that would impugn his credibility.

Secondly, the arbitrator was satisfied with the very detailed evidence of Mr. Uribe´s financial needs as outlined in his affidavit that he had made out a case for financial need.

Third, the arbitrator found that there was sufficient credible evidence to show that despite Mr. Uribe´s physical problems prior to the accident, he continued to work on a regular basis.

Mr. Uribe had provided sufficient relevant medical evidence which was ignored by Wawanesa and supported his claim at a full arbitration hearing for continuing income replacement benefits.

Mr. Uribe´s income replacement benefits were terminated on the basis of a multidisciplinary assessment which included: a Functional Capacity Evaluation by a kinesiologist, an orthopaedic surgeon´s assessment, and a psychiatric assessment.

In the Functional Capacity Evaluation Mr. Uribe´s work duties were rated "as heavy level of work capacity." The kinesiologist was unable to provide any meaningful conclusions because Mr. Uribe was unable to complete 10 out of the 13 tasks due to subjective reports of pain. Specifically, the kinesiologist noted that "Mr. Uribe appeared focused on his pain symptoms during today´s assessment, and limited his performance as a result."

In the orthopaedic surgeon´s report, except for disability certificates, there was no mention of having reviewed any substantial medical reports or clinical notes and records from Mr. Uribe´s family physician regarding his past medical history. The surgeon´s report, which was very short, did not reflect an in-depth interview or examination.

The orthopaedic surgeon determined that he was unable to identify any objective evidence substantiating Mr. Uribe´s subjective complaints of severe pain. Accordingly, he concluded that Mr. Uribe could return to his pre-accident occupation and housekeeping tasks.

The assessor of Mr. Uribe´s psychiatric assessment concluded that his "subjectively reported impairments" were not of sufficient severity to cause a disability. From a psychiatric perspective, the report viewed that Mr. Uribe did not suffer a substantial inability to perform his pre-accident employment.

Wawanesa did not conduct any further insurer´s assessments in the light of relevant medical evidence provided by Mr. Uribe to support his claim for income replacement benefits for benefits.

This relevant medical evidence included Wawanesa´s own psychological assessment on June 7 and 11, 2007.

In the reports conclusions, it was stated that: "Diagnostically, Mr. Uribe ...would appear to meet accepted DSM-TR criteria for Pain Disorder at this time."; "The main clinical impression is that Mr. Uribe is suffering from unresolved emotional impairments and prudence suggests that these psychological sequelae of the accident should receive professional attention."

Mr. Uribe began therapy based on the June 7 and 11, 2007 assessments. In a clinical note dated July 23, 2007, the doctor in charge of Mr. Uribe´s therapy stated that Mr. Uribe continued to be disabled from work, by virtue of his suffering from Post Traumatic Stress Disorder and a Major Depressive Episode.  Mr. Uribe was receiving medical treatment from his family physician as well as psychotherapy in the therapy doctor´s office. His prognosis remained guarded.  As Mr. Uribe remained unable to return to work, he did not have an income. The stress, hopelessness and increased anxiety that this financially dire situation had created, caused him to psychologically fall apart. If Mr. Uribe did not begin to receive financial assistance his psychological vulnerability would exacerbate and he would be placed at risk of decompensation.

Mr. Uribe was also diagnosed by with a moderately severe, chronic C6-8 left side axonal radiculopathy, a diagnosis Mr. Uribe did not have before the accident. The diagnosing doctor wrote a report of Mr. Uribe´s condition post-accident which stated that Mr. Uribe continued to be in constant, severe pain from injuries sustained in a motor vehicle accident, involving cervical whiplash, and thoracolumbar strain. Nearly 12 months post accident he had developed a chronic pain syndrome. In addition, Mr. Uribe was diagnosed with depression, post traumatic stress syndrome and hypertension. The diagnosing doctor concluded that Mr. Uribe was sufficiently disabled from pain and he certainly would never be able to work in construction again. Given the level of his incapacity from depression and sleep, his prognosis for being able to work at any other occupation was guarded, given that Mr. Uribe was 54 years old and had worked in construction all of his adult life.

A little over a week before the motion hearing, on August 27, 2008, the psychiatric assessor prepared a brief addendum to his April report wherein he stated that he conducted a paper review of Wawanesa´s psychiatric report of June 22, 2007, as well as the therapy doctor´s report of July 23, 2007. Without providing any analysis or reasons the psychiatric assessor concluded that after reviewing the additional documentation, the opinions expressed in his Psychiatric Assessment Report dated April 26, 2007 remain unchanged.

The arbitrator gave little to no weight to both of the psychiatric assessors´ report and addendum. Besides not providing any analysis for his conclusion, the assessor seemed to be unaware or, for some unknown reason, did not give any consideration to the reports by the therapy doctor or the assessments by Mr. Uribe´s treating psychologist, and his treating psychiatrist.

The arbitrator also found that the psychiatric assessor´s April assessment and the paper review addendum when compared to the two day in-depth testing of June 7 and 11, 2007 psychological assessments and the assessment of Mr. Uribe´s treating psychologist is very superficial.

In conclusion the arbitrator found that the medical evidence presented by Wawanesa in support of its defense was negligible compared to the substantial relevant evidence presented by Mr. Uribe. For this reason, it was more likely than not that Mr. Uribe would be successful at arbitration in his claim for income replacement benefits.

The arbitrator also found that Mr. Uribe presented a compelling case in his affidavit evidence for his urgent financial need. This is also substantiated by the medical evidence which indicated that the financial stresses in Mr. Uribe´s life was impacting on his psychological health and fueling his depression. Mr. Uribe presented a prima facie and therefore the arbitrator found that Mr. Uribe was entitled to interim income replacement benefits.

Posted under Accident Benefit News, Automobile Accident Benefits, Chronic Pain, Disability Insurance, Pain and Suffering, Physical Therapy, Slip and Fall Injury, 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.

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