Insured's evidence not supported by medical documentation or surveillance

October 25, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Richard Feldman

Date of Decision: August 7, 2014

 

Issues:

 

Bhupinder Singh Grewal was injured in a car accident on January 18, 2009.  His Tractor Trailer was sideswiped by a car and as a result his head broke the window of the truck and he suffered mild/moderate brain injury, fractured bones and a subdural haematoma. He was taken by ambulance to the hospital where he suffered a seizure. A GCS test resulted in a score of 9 and it was determined Mr. Grewal sustained catastrophic injury. Mr. Grewal was 34 years old at the time of the accident, university educated and spoke 3 languages. He had worked in a large variety of professions from farming to truck driving.

 

He applied for and received statutory accident benefits from AIG payable under the Schedule.  Disputes arose concerning certain accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Grewal applied for arbitration at the Financial Services Commission of Ontario.

 

The issues in this hearing are:

 

  1. Is Mr. Grewal entitled to receive caregiver benefits in the amount of $300.00 per week from January 19, 2009 to July 7, 2009 (less amounts paid)?

  2. Is Mr. Grewal entitled to receive weekly income replacement benefits from July 8, 2009 onwards at the rate of $183.00 per week?

  3. Is Mr. Grewal entitled to receive payments for housekeeping and home maintenance services at the rate of $100.00 per week from January 19, 2009 onwards (less amounts paid)?

  4. Is Mr. Grewal entitled to attendant care benefits as follows:

    1. $6,000.00 per month (less amount paid) from January 19, 2009 to August 18, 2009?

    2. $1,582.55 per month from August 19, 2009 onwards?

  5. Is Mr. Grewal entitled to receive the following medical benefits:

    1. $10,259.19 for the cost of an in-home assessment and treatment in a plan dated August 21, 2012?

    2. $5,530.00 for the cost of social skills training recommended in a plan dated November 8, 2012?

    3. $56,600.00 U.S. for the cost of assessment and treatment recommended in a plan dated September 26, 2012?

    4. $323.30 for the difference between the cost ($776.72) of assistive devices recommended in a plan dated March 5, 2009 and the amount approved by the Insurer ($453.42)?

    5. $1,936.40 for the difference between the cost ($3,415.32) of treatment recommended in a plan dated April 15, 2009 and the amount approved by the Insurer ($1,478.92)?

    6. $1,464.46 for the difference between the cost ($5,244.56) of treatment recommended in a plan dated February 4, 2009 and the amount approved by the Insurer ($3,780.10)?

    7. $954.80 for the cost of devices recommended in a plan dated May 12, 2009?

    8. $2,800.00 for TMJ oral treatment in a plan dated September 1, 2009?

    9. $538.99 for the difference between the cost ($1,149.19) of a gym and lumosity membership recommended in a plan dated November 21, 2012 and the amount approved by the Insurer ($610.20)?

  6. Is Mr. Grewal entitled to the following (re cost of assessments):

    1. $1,541.00 for the cost of a social work assessment recommended in a plan dated July 9, 2009?

    2. $1,000.00 for the difference between the cost ($1,800.00) of a TMJ assessment in a plan dated July 8, 2009 and the amount approved by the Insurer ($800.00)?

    3. $2,302.00 for a neurological assessment recommended in a plan dated July 10, 2009?

    4. $902.00 for the difference between the cost ($2,302.00) of an orthopaedic assessment recommended in a plan dated July 10, 2009 and the amount approved by the Insurer ($1,400.00)?

  7. Is Mr. Grewal entitled to interest for the overdue payment of benefits?

  8. Is the Insurer liable to pay Mr. Grewal a special award pursuant to subsection 282(10) of the Insurance Act, because it unreasonably withheld or delayed payments to Mr. Grewal?

  9. Is the Insurer liable to pay the expenses of Mr. Grewal in respect of the arbitration under s. 282(11) of the Insurance Act?

  10. Is Mr. Grewal liable to pay the Insurer’s expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

 

Result:

 

  1. The Insurer shall pay up to $5,244.56 for all goods and services provided to Mr. Grewal pursuant to the treatment plan dated February 4, 2009 (less amounts, if any, already paid by the Insurer for goods or services pursuant to this treatment plan).

  2. The Insurer shall pay interest on all overdue amounts in accordance with the Schedule.

  3. The issue of the expenses of this proceeding is deferred.

  4. All other claims of Mr. Grewal are dismissed.

 

EVIDENCE AND ANALYSIS:

 

Mr. Grewal recovered reasonably well from his physical injuries, although he continues to complain of some chronic pain (especially headaches) and other symptoms.  His more significant ongoing impairments, however, appear to be psychological and cognitive.

 

Initially AIG appeared willing to accept Mr. Grewal’s claims at face value, however, in the summer of 2009 serious questions began to arise concerning Mr. Grewal’s credibility.  There were significant discrepancies between Mr. Grewal’s reported and demonstrated level of function during formal testing and his level of functional ability as captured in surveillance videos.  Mr. Grewal also failed numerous tests for validity administered by a neuropsychologist (Dr. T); he failed to such an extent that Dr. T concluded that Mr. Grewal was likely deliberately trying to make himself appear more impaired than he was.  These suspicions were later exacerbated by evidence of inconsistencies in what Mr. Grewal was telling different assessors and by his failure to disclose crucial information to the Insurer.

 

Mr. Grewal failed to address concerns about his credibility at arbitration, and his case was significantly weakened.  Mr. Grewal failed to produce witnesses at the hearing such as members of his household who could describe and compare Mr. Grewal’s level of function and usual activities (such as housekeeping and caregiving activities) both before and after the accident and who could provide particulars of any services they (or others) may have provided to Mr. Grewal.

 

AIG paid $300.00 per week in caregiver benefits from January 19, 2009 through May 10, 2009, thus the period in dispute is from May 11, 2009 through July 7, 2009 - less than two months of caregiver benefits in dispute). Mr. Grewal’s claim for caregiver benefits is dismissed because he has failed to prove both that he was the primary caregiver of his children at the time of the accident and that, during the period in question, he suffered a substantial inability to engage in the caregiving activities in which he engaged at the time of the accident.

 

Mr. Grewal claimed income replacement benefits in the amount of $183.00 per week from July 8, 2009 onwards. Under the Schedule an applicant could choose to claim only one of three weekly benefits.  In this case, Mr. Grewal initially (in March 2009) elected to claim caregiver benefits. On July 7, 2009, Mr. Grewal’s lawyer wrote to the Insurer, enclosing a new form OCF-10 and explaining why Mr. Grewal wished to change his election and claim income replacement benefits from that date onwards. 

 

Mr. Grewal’s lawyer indicated that, when Mr. Grewal initially made his election on March 6, 2009, he had not yet filed his income tax return for 2008 and so was unable to decide which type of benefit was most advantageous to him.  The reason given by Mr. Grewal’s counsel for seeking to re-elect seemed weak to the Arbitrator and the timing suspicious.  In light of the short delay in making the re-election and the lack of any evidence of prejudice to the Insurer, the Arbitrator permitted the re-election also considered the circumstances surrounding this re-election when assessing the credibility of Mr. Grewal.

 

Pursuant to the Schedule, an insurer shall pay an insured person an income replacement benefits if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. If as a result of the accident the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience, the insurer will continue IRBs post 104 weeks.  The Arbitrator reviewed the income tax returns Mr. Grewal provided, and reviewed the benefit formula set out in the Schedule. No personal income tax returns were provided by Mr. Grewal for 2011, 2012 or 2013.  No documentation was provided by Mr. Grewal to verify his hours of work or income earned for these years. 

 

Mr. Grewal’s Post-accident Employment and Income was virtually undocumented although he admits to working extensively after the accident in 2009. He admitted that, at some point in 2009 he began to drive his truck again continued until 2012.  He testified that he worked about 8 hours per day, three or four days per week. His reported gross business income for 2010 was virtually identical to his reported net personal annual income at the time of the accident.

 

The onus was upon Mr. Grewal to establish both that he meets the threshold level of impairment to qualify for the benefits claimed (i.e., a substantial inability to perform the essential tasks of the pre-accident employment) and also the quantum of the benefit to which he is entitled.  In this case Mr. Grewal has failed to meet this onus.

 

For the period from January 18, 2011 onwards (post 104), the onus was upon Mr. Grewal to prove that he met the threshold level of impairment to qualify for the benefits claimed (i.e., a complete inability to engage in any employment for which he is reasonably suited by education, training or experience) and to establish the quantum of the benefit to which he is entitled.  Once again Mr. Grewal failed to meet his onus.

 

Mr. Grewal possesses education, training and experience in: agriculture; working with machinery; driving smaller as well as larger vehicles and making deliveries within the Greater Toronto Area; and factory work (including supervising others and doing quality control). Despite some lingering impairments, the Arbitrator found that Mr. Grewal has demonstrated sufficient functional ability, motivation and endurance to work at a job that would pay at least as much as his reported pre-accident income.  Mr. Grewal has failed to prove that he has suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. Therefore the Arbitrator was unable to find that he is entitled to any income replacement benefit during this period.

 

Mr. Grewal claimed payments for housekeeping and home maintenance services at the rate of $100.00 per week from January 19, 2009 onwards (less amounts paid). He did not testify what assistance her required. The preponderance of the evidence suggests that the housekeeping and home maintenance services that Mr. Grewal normally performed before the accident were extremely limited. 

 

Assessment and video surveillance indicated that Mr. Grewal exaggerated his symptoms to assessors, and was fully capable of everyday tasks and demanding physical activities. Mr. Grewal has failed to prove, on a balance of probabilities, that subsequent to June 2009, he sustained a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident.  Therefore, this claim is also dismissed.

 

Pursuant to section 16 of the Schedule, an insurer is required to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Mr. Grewal has claimed attendant extensive care benefits. AIG paid $6,000 per month in attendant care benefits for the period from January 19, 2009 through April 12, 2009 and $3,000 for the period of April 13, 2009 through May 10, 2009.  The Insurer formally terminated payment of this benefit effective June 29, 2009, based upon video surveillance, OT reports, and Reports from physicians indicating symptom exaggeration. AIG cited that Mr. Grewal did not require the level of supervision and assistance being claimed.  Subsequent assessments were flawed in methodology, and often indicated Mr. Grewal did not require the assistance he claimed.

 

In the light of the conflicting information and expert opinions concerning Mr. Grewal’s need for attendant care and the problems with the various attendant care assessments, it would have been critical to hear cogent and credible testimony from Mr. Grewal and members of his household as to Mr. Grewal’s attendant care needs since the accident.  In fact, there was no testimony during this hearing from Mr. Grewal that suggested Mr. Grewal required any attendant care during the period in question.  No one else from Mr. Grewal’s household testified.

 

In all the circumstances of this case and based upon the evidence, Mr. Grewal’s claim for attendant care benefits must be denied.  He has simply failed to prove, on a balance of probabilities, the exact nature and extent of any attendant care services he reasonably required beyond what has already been provided for by the Insurer.

 

Medical Benefits

 

By 2012, Mr. Grewal had physically recovered from his accident-related injuries and that he was physically able to perform all or virtually all activities of daily living. His impairments were largely cognitive (problems with memory, concentration, speech, initiation, etc.).  Mr. Grewal has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed physical therapy treatment was reasonable and necessary and this claim is dismissed. Mr. Grewal has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed social skills training treatment was reasonable and necessary and this claim is dismissed.

 

Regarding the $56,600.00 U.S. for the cost to assess and treat Mr. Grewal’s co-morbid traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) recommended by Dr. C in a plan dated September 26, 2012 Mr. Grewal  did not address this proposed treatment, nor indicate any interest in attending it. Based on other medical evidence the Arbitrator indicated it is crucial to obtain current, valid neuropsychological test results for Mr. Grewal.  Once reliable results from such an assessment are obtained, Mr. Grewal is free to submit a new treatment plan to the Insurer for whatever treatment his expert(s) deems to be reasonable and necessary.

 

The Arbitrator allowed the transportation claim as it is eligible pursuant to the Schedule.

 

Regarding the balance of the claims the Arbitrator found Mr. Grewal failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to more than the amount approved by the Insurer.

 

No special award was granted in this case.

Posted under Accident Benefit News, Automobile Accident Benefits, Brain Injury, Car Accidents, Catastrophic Injury, Chronic Pain, Drunk Driving Accidents, Fractures, Pain and Suffering, Paraplegia, Physical Therapy, Quadriplegia, Treatment, Truck Accidents

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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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