Evidence supported significant change in insured's life after car accident

August 24, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Alec Fadel

Date of Decision: June 5, 2014

 

REASONS FOR DECISION

 

Issues:

 

Tara Basra was injured in a car accident on September 9, 2009 when a third-party vehicle ran a red light colliding with Mr. Basra’s vehicle in a T-bone fashion on the drivers’ side in an intersection. The impact caused Mr. Basra’s vehicle to spin and strike a signpost. Immediately post-accident he refused paramedic care, but two days later he presented at the hospital with pain in his neck which radiated down his right shoulder and pain in his lower back. The physician examined him and ordered diagnostic imaging of his C-spine and diagnosed musculoskeletal strain.  A c-collar was applied and Mr. Basra was discharged and instructed to follow up with his family physician.

 

Mr. Basra received SABs from Allstate, and IRBs and housekeeping benefits until Feb 3, 2010. He also received some attendant care benefits.

 

The issues in this hearing are:

 

  1. Is Mr. Basra entitled to a weekly income replacement benefit from February 4, 2010 to date and ongoing?

  2. Is Mr. Basra entitled to housekeeping and home maintenance expenses from February 3, 2010 to September 9, 2011?

  3. Is Mr. Basra entitled to the various medical benefits which he claimed, and for psychological counselling as set out on a treatment plan?

  4. Is Mr. Basra entitled to the cost of various examinations?

  5. Is Mr. Basra entitled to interest for overdue payments?

  6. Is Allstate required to pay a special award because it unreasonably withheld or delayed payment of accident benefits to Mr. Basra?

  7. Is Mr. Basra entitled to his expenses of the arbitration proceeding?

  8. Is Allstate entitled to its expenses of the arbitration proceeding?

 

Result:

 

  1. Mr. Basra is entitled to a weekly income replacement benefit at the rate of $400.00 from February 4, 2010 to date and ongoing.

  2. Mr. Basra is entitled to housekeeping and home maintenance at the rate of $100.00 per week from February 3, 2010 to September 9, 2011.

  3. Mr. Basra is entitled to the following medical benefits: $1,851.48 for massage and pool therapy as set out on a treatment plan dated December 9, 2009; $964.36 for assistive devices as set out on a treatment plan dated January 4, 2010; and, $4,232.20 for psychological counselling as set out on a treatment plan dated November 26, 2010.

  4. Mr. Basra is not entitled to the following medical benefits: any outstanding balance beyond what was approved for physiotherapy as set out on a treatment plan dated November 16, 2009.

  5. Mr. Basra is entitled to the following cost of examinations: $110.00 for the OCF-3 dated February, 18, 2011; $1,383.00 for a functional capacity evaluation as set out on an OCF-22 dated September 7, 2010; and, $2,301.97 for an orthopaedic assessment as set out on an OCF-22 dated March 12, 2010; $713.72 for a follow-up job-site assessment as set out on an OCF-22 dated March 26, 2010; and, $2,373.49 for a neurological assessment as set out on an OCF-22 dated April 15, 2010.

  6. Mr. Basra is not entitled to the following cost of examinations: $700.00 being the outstanding balance of a TMJ assessment as set out on an OCF-22 dated February 17, 2010; $2,250.00 for an orthopaedic assessment as proposed on an OCF-22 of March 12, 2010.

  7. Mr. Basra is entitled to interest on overdue payments found owing.

  8. Allstate is not liable to pay a special award.

  9. There is no order on the issue of expenses. I remain seized should the parties be unable to resolve this issue on their own.

 

Background:

 

Mr. Basra was born in India and was 56 years old at the time of the accident. He came to Canada in May 1972, secured employment with Ford Motor Company where he worked until his early retirement in August 2008. At the end of May 2009, Mr. Basra began employment as an inspector with Automotive Specialty.

 

Mr. Basra had pre-existing medical issues including lower back pain from a workplace incident in the 1980s; a massive tear to his right rotator cuff which dated back to January 2007. Pre-accident clinical notes also mention chronic bilateral leg swelling and right foot pain in the months leading up to the accident. Despite these pre-existing issues, Mr. Basra submits that he was fully functioning in all aspects of his life prior to the accident.

 

Allstate submits that Mr. Basra’s pre-existing injuries are the reason for his disability preventing him from engaging in his daily activities as well as causing depression secondary to his chronic right shoulder pain, all of which are unrelated to the accident. They submit that Mr. Basra had been prescribed pain medication months prior to the accident. They also submit that Mr. Basra is not suffering any mental issues, or depression but is making them up.

 

Mr. Basra was found by the Arbitrator to be a credible witness who answered all questions clearly, and whose testimony was corroborated by medical evidence. He gave a clear portrayal of his life before and after the accident. He was a hardworking family man.  Medical evidence from several professionals including the insurer’s assessments indicated that Mr. Basra was not a malingerer, did not exaggerate his symptoms, and that he suffers from chronic pain disorder, depression and anxiety.

 

The question to be resolved in the case was of causation. The Arbitrator specifically used the “but for” test in this case. It is uncontested by Mr. Basra that he presented with pre-accident pain complaints, specifically related to his lower back and right shoulder. Yet, despite these pre-existing issues, the evidence supports that he was fully functioning in all realms of his normal life just prior to the motor vehicle accident.

 

Testimony was given from his supervisor at work that there was a marked change in Mr. Basra’s ability to do his job immediately following the accident. He was unable to meet the physical expectations of his job.

The Arbitrator found that the preponderance of evidence indicates that Mr. Basra was injured as a result of the accident and currently suffers from medical conditions and physical limitations that did not exist pre-accident. The Arbitrator also found that as a result of the accident, Mr. Basra sustained injury to his back and neck, exacerbated an already existing injury to his right shoulder and lower back, and went on to develop depression and anxiety. Mr. Basra was fully functioning just prior to the accident and that immediately following the accident his life significantly changed.

Posted under Accident Benefit News, Amputation and Disfigurement, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Pain and Suffering, Physical Therapy, 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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