COVID-19 UPDATE  

Insured's evidence did not show degree of disability or change in ordinary pre-accident activities.

April 24, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Eban Bayefsky

Date of Decision: February 23, 2015

 

REASONS FOR DECISION

 

Issues:

 

Ioura Rezgo was injured in a car accident on August 29, 2010 when the car he was driving was struck on the side during a left turn into a parking lot. He claims injury to his neck, shoulder and back, hip and suffered numbness and headaches.  He began treatment at a Rehab centre two days after the accident on the advice of his daughter. He chose the centre because they spoke his native language and it was close to his home. He testified he told his family doctor about the injuries but the physician notes have no record of them. Mr. Rezgo testified that, before the accident, he did not have back pain, or any pain at all.

 

In June 2011 Trafalgar terminated weekly non-earner benefits (NEBs), and as the parties could not resolve their disputes Mr. Rezgo applied for arbitration at FSCO. The hearing was joint with that of his wife who was also injured in the accident.

 

Issues in this hearing are:

 

  1. Is Mr. Rezgo entitled to non-earner benefits, from June 14, 2011?

  2. Is Mr. Rezgo entitled to attendant care benefits, from August 30 to September 30, 2010 and from January 1, 2011 to August 29, 2012, at a rate of $849.03 per month, less amounts already paid?

  3. Is Mr. Rezgo entitled to housekeeping benefits, from December 20, 2010 to March 6, 2011, at a rate of $65 per week, and from March 7, 2011 to August 29, 2012?

  4. Is Mr. Rezgo entitled to medical benefits for the following items from Metro Rehab?

    1. an OCF-3 (a disability certificate), dated September 3, 2010, in the amount of $200

    2. a treatment plan, dated October 5, 2010, in the amount of $840

    3. a treatment plan, dated January 13, 2011, in the amount of $1,363.66

  5. Is Mr. Rezgo entitled to the cost of an attendant care assessment, by Assessment Direct, on August 31, 2010?

  6. Is Trafalgar Insurance Company of Canada liable to a special award because it unreasonably withheld or delayed payments to Mr. Rezgo?

  7. Is Mr. Rezgo entitled to interest for the overdue payment of

 

Result:

 

  1. Mr. Rezgo is not entitled to non-earner benefits.

  2. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo attendant care benefits, from August 30 to September 30, 2010, at a rate of $24.14 per month, less amounts already paid.

  3. Mr. Rezgo is not entitled to housekeeping benefits.

  4. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo medical benefits for a treatment plan, dated October 5, 2010, from Metro Rehabilitation Centre, in the amount of $840. Mr. Rezgo is not entitled to medical benefits for a Disability Certificate, dated September 3, 2010, in the amount of $200, or a treatment plan, dated January 13, 2011, in the amount of $1,099.94, from Metro Rehabilitation Centre.

  5. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo the cost of an attendant care assessment, by Assessment Direct, on August 31, 2010, in the amount of $1,054.24.

  6. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo a special award in respect of the August 31, 2010 attendant care assessment by Assessment Direct, in an amount to be determined.

  7. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo interest on the benefits ordered to be paid.

 

EVIDENCE AND ANALYSIS:

 

On February 7, 2014 a chronic pain specialist assessed Mr. Rezgo at the request of his counsel, and diagnosed Mr. Rezgo as suffering from extensive chronic pain throughout his body, possible disc herniation, chronic sleep and mood disturbance stating, Mr. Rezgo was “suffering from a debilitating chronic pain disorder that is most likely a result of his motor vehicle accident on August 29, 2010.”

 

Mr. Rezgo’s credibility was brought into question by Trafalgar, and in the opinion of the Arbitrator, Mr. Rezgo’s testimony lacked credibility in terms of both its consistency and his general responsiveness to the questions put to him. The fact he attended his family doctor a few days following the accident and said he had been in an accident but he had no complaints was suspect. Mr. Rezgo changed his story under oath several times about his interactions with his family doctor, and his family doctor seemed to think that Mr. Rezgo was confused about what medical disability certificate was when asked to comment upon the one provided by the Rehab facility.

 

Notes from a visit to Mr. Rezgo’s cardiologist were similarly void of any mention of the accident. When asked about why there was no mention of the accident, Mr. Rezgo said that he did not tell the cardiologist about the accident, because he was a cardiologist, but then said that he did tell the cardiologist about his accident-related pain. Mr. Rezgo had also testified that, before the accident, he had no pain and there was “nothing bothering [him].”  Other medical testimony provided suggested Mr. Rezgo was malingering and magnifying symptoms. 

 

The Arbitrator found that these problems significantly undermined Mr. Rezgo’s credibility and after listening to lengthy testimony and cross examination in the hearing the Arbitrator concluded that his evidence is unreliable.

 

Mr. Rezgo’s Claim for NEBs was based on his claim that as a result of the accident, he was continuously prevented from engaging in substantially all of his ordinary pre-accident activities. The Insurer submitted that neither the personal nor medical evidence Mr. Rezgo provided was reliable and that he had not established the requisite degree of disability under the Schedule.

 

The Arbitrator reviewed the testimony and the law and determined that in order to determine whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident. Mr. Rezgo must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

Posted under Accident Benefit News, Car Accidents, Chronic Pain, Disability Insurance, Fractures, Pain and Suffering, Treatment

View All Posts

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

  1. Car accidents
  2. Motorcycle accidents
  3. Automobile accident benefits
  4. Catastrophic injury
  5. Brain or Head injury
  6. Paraplegia and Quadriplegia
  7. Spinal cord injury
  8. Drunk driving accidents
  9. Concussion syndrome
  10. Post Traumatic Stress Disorder
  11. Business Interruption Insurance
  12. Birth Trauma Injury
  1. Wrongful death
  2. Bicycle accidents
  3. Disability insurance claims
  4. Slip and fall injury
  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

Personal Injury Blog

Aug 04, 2020
Post-Concussion Treatment is Extremely Important in Suicide Prevention
Jul 30, 2020
Being the loved one or care giver of someone with TBI can be very challenging
Jul 28, 2020
Children who suffer concussions are susceptible to behavioral and emotional symptoms
Jul 23, 2020
Long-Term Care Homes and Hospitals Relax Visitor Restrictions
Jul 21, 2020
E-bike Popularity Continues to Grow – Remember They are Subject to Regulation
Jul 18, 2020
Al Fresco Dining Here to Stay, but Risk Needs to Be Managed

More Personal Injury Articles » 
Review our services

Connect with us

Facebook Twitter Linkedin Youtube Google