Insured's credibility questioned and not found to be catastrophically impaired

April 05, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Decision Date: 2014-12-19

Heard Before: Adjudicator Marshall Schnapp

 

REASONS FOR DECISION

 

Issues:

 

Ronald Kidder was injured in a car accident on February 7, 2009. He was working as a flag man when he was hit by a car then assaulted by the car driver. The driver fled the scene, police arrested him later. Mr. Kidder finished the remainder of his shift and drove himself home at the end of the day. According to the employment documentation admitted as evidence, Mr. Kidder did not miss any time from work as a result of the accident.

 

He applied for and received statutory accident benefits from Economical payable under the Schedule. After Economical denied some benefits Mr. Kidder applied for Arbitration at the FSCO.

 

The issues in this Hearing are:

 

  1. Did Mr. Kidder sustain a Catastrophic Impairment as a result of the accident?

 

  1. Is Mr. Kidder entitled to medical benefits in the amount of $5,331.62 for psychological treatment?

 

  1. Is Mr. Kidder entitled to receive expenses for cost of examinations as follows: $1,788.32 for a Psychological Assessment dated November 26, 2009; $1,728.61 for an In-Home Assessment dated January 18, 2010; $1,293.71 for a Functional Abilities Evaluation dated April 15, 2010; and $2,295.00 for an Orthopedic Assessment dated January 18, 2010?

 

  1. Is Mr. Kidder entitled to Attendant Care Benefits?

 

  1. Is Mr. Kidder entitled to payments for Housekeeping and Home Maintenance Services?

 

  1. Is Mr. Kidder entitled to a Special Award?

 

  1. Is Mr. Kidder entitled to interest for the overdue payment of benefits?

 

Result:

 

  1. Mr. Kidder did not sustain a Catastrophic Impairment as a result of the accident.

 

  1. Mr. Kidder is entitled to medical benefits in the amount of $5,331.62 for psychological treatment.

 

  1. Mr. Kidder is entitled to receive expenses for the cost of examinations in the amount of $1,788.32 for the payment of a Psychological Assessment dated November 26, 2009. Mr. Kidder is not entitled to receive expenses for payments for the In-Home Assessment dated January 18, 2010; Functional Abilities Evaluation dated April 15, 2010; and the Orthopedic Assessment dated January 18, 2010.

 

  1. Mr. Kidder is not entitled to Attendant Care Benefits.

 

  1. Mr. Kidder is not entitled to payments for Housekeeping and Home Maintenance services.

 

  1. Mr. Kidder is not entitled to a Special Award under subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended.

 

  1. Mr. Kidder is entitled to interest on the overdue payments for medical benefits and expenses for the cost of examination.

 

 

EVIDENCE AND ANALYSIS:

 

Mr. Kidder claimed to have sustained a Catastrophic Impairment from a mental and behavioural standpoint as a result of the car accident. He had pre-existing psychological difficulties, and claimed that the mental and behavioural difficulties resulting from the accident had a marked impact on his life including his work life, even though he continued to work for two years after the accident. Mr. Kidder is also claiming medical, cost of examinations, Attendant Care, and Housekeeping Benefits as a result of the accident.

 

 Mr. Kidder attended his family doctor seven weeks after the accident, and she completed a Disability Certificate (OCF-3), dated April 15, 2009. The OCF-3 described Mr. Kidder’s injuries and conditions as follows: shoulder and neck strain (WAD I or II); lumbar strain; and Post-Traumatic Stress Disorder (“PTSD”). It also stated that Mr. Kidder was substantially unable to perform the tasks of his employment as a result of the accident. However, the doctor noted Mr. Kidder had already returned to work. 

 

Mr. Kidder had a history of abuse in childhood, minor car accidents, a serious accident (broken neck and back) in 1996 from which he had fully recovered, and mental health counselling in 2002. He claims this accident was the ‘straw that broke the camel’s back’ and has left him catastrophically impaired.

 

Economical takes the position that Mr. Kidder did not sustain a Catastrophic Impairment from a mental and behavioural standpoint as a result of the accident. As well, no more benefits are owed to Mr. Kidder for medical, cost of examinations, Attendant Care and Housekeeping. Economical’s position is that while Mr. Kidder may have some mental and behavioural impairments, those impairments are not catastrophic in nature and that he is embellishing his injuries leading his physicians to make the wrong diagnosis.

 

The Arbitrator reviewed the testimony of Mr. Kidder, evidence of surveillance, and physicians’ reports. There was surveillance video taken over years showing Mr. Kidder to be at a high activity level interacting with friends and family with ease. This is contrary to evidence given by him and his expert witnesses. The Arbitrator determined that Mr. Kidder’s credibility came under serious question on a number of occasions during direct and cross-examination and concluded Mr. Kidder lacked credibility.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Disability Insurance, Drunk Driving Accidents, Pain and Suffering, 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.

Practice Areas

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  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

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