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Insured entitled to 104 Weeks IRBs But Fails to Prove Injuries Fall Outside MIG

February 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Rentiya and Wawanesa – IRBs; MIG; 104 weeks of IRB claims supported by evidence provided; Insured fails to show injuries fall outside MIG


Rentiya and Wawanesa

Decision Date: 2016-09-19
Heard Before: Adjudicator Barry Arbus

REASONS FOR DECISION

Mr. Javed Rentiya was involved in car vehicle accident on September 29, 2011, when his car was hit on the driver’s side by a third party. Mr. Rentiya was taken to hospital and his injuries including headaches, neck pain, left elbow pain, left knee pain and lower back pain were treated. He applied for and received statutory accident benefits from Wawanesa, but when the parties were unable to resolve a number of issues in dispute through mediation, Mr. Rentiya applied for arbitration at the FSCO.

The issues in this Hearing are:

  1. Is Mr. Rentiya entitled to Income Replacement Benefits (“IRBs”)?
  2. Are Mr. Rentiya’s impairments subject to the Minor Injury Guideline (MIG) as defined by the Schedule?
  3. If Mr. Rentiya’s injuries do not fall within the MIG, is Mr. Rentiya entitled to various treatment plans, assessments and costs of examination?
  4. Is Mr. Rentiya entitled to a Special Award?
  5. Is Mr. Rentiya entitled to interest on overdue payments in accordance with the Schedule?

Result:

  1. Mr. Rentiya is entitled to IRBs from July 15, 2012 to September 29, 2013 in the amount of $281.80 per week. Mr. Rentiya is not entitled to IRBs beyond two years after the date of the accident.
  2. Mr. Rentiya is subject to the Minor Injury Guideline, and accordingly the cap of $3,500.00 on Medical and Rehabilitation Benefits as defined by the Schedule.
  3. Mr. Rentiya is not entitled to funding for the treatment plans and assessments in dispute.
  4. Mr. Rentiya is not entitled to a Special Award.
  5. Mr. Rentiya is entitled to interest on overdue payments at the rate prescribed by the Schedule.

Mr. Rentiya was born in India in 1979 where he attained the equivalent of a Grade 8 education. He came to Canada in 2005 and immediately went to work at Alysco where he was working at the time of the accident. He was married in 2003 and at the time of the accident, he had two children. In March 2010, Mr. Rentiya had a work-related accident, took a few months off work, returned with modified duties for 2 to 3 months and resumed his regular duties until the date of the accident. Mr. Rentiya explained that he worked a 40-hour week, Monday to Friday. Mr. Rentiya described that his job entailed lifting 80 – 100 lb. bales of clothing and moving them within the warehouse at Alysco. Prior to the accident, he explained he had a normal social life including attending the mosque, visiting friends, playing cricket and enjoying his family relationships.

Mr. Rentiya described that he suffered no pain before the accident, but now has difficulty sleeping, has anxiety driving on the highway, and his relationships with his wife, children, friends and at the mosque have deteriorated somewhat. He indicated that he is unable to do his work at Alysco because of the pain. Mr. Rentiya speaks virtually no English, only Gujarati.

Mr. Rentiya’s counsel states that Mr. Rentiya has been unable to return to any form of employment given his limited education, limited training, limited experience, and his physical and emotional disability, and that at the time Mr. Rentiya’s IRBs were terminated, he suffered from neck, lower back, left elbow and left knee pain, in addition to suffering from headaches, dizziness, sleeping difficulties and emotional difficulties. Mr. Rentiya’s counsel argues that the medical specialists’ reports obtained all comment on Mr. Rentiya’s inability to work from an emotional perspective. The doctors all opine that Mr. Rentiya does not have the functional capacity of lifting, pushing or pulling heavy items for prolonged periods of time so that he is unable to return to any form of employment. Mr. Rentiya’s counsel submits that Mr. Rentiya suffers from widespread, chronic pain, an injury to his left knee, and insomnia, collectively preventing him from returning to work.

Wawanesa takes the view that Mr. Rentiya’s physical status essentially stayed the same after the accident as it was before. Wawanesa provided evidence that Mr. Rentiya was not required to lift 100 lb. bales at work. He was required to assemble them and push them around on wheeled carts, so that the requirement of strength and heavy lifting was exaggerated. Wawanesa argues that Mr. Rentiya made no attempt to return to work, whether in the same capacity or with modified duties as a result of the accident. Wawanesa submits that Mr. Rentiya’s lack of fluency in the English language should not be a bar to his ability to make reasonable efforts to return to work or seek alternative suitable employment.

The Arbitrator reviewed the evidence and the Schedule and determined that the evidence provided by Mr. Rentiya himself and supported by his medical reports supports the position that for the first 104 weeks following the accident he suffered a substantial inability to perform the essential tasks of his employment. The medical evidence submitted support this position. However, the medical reports provided by Mr. Rentiya’s counsel, together with the evidence of Mr. Rentiya himself failed to find any objective musculo-skeletal impairment present. Since the accident, it does not appear that Mr. Rentiya has actively looked for any other jobs. Mr. Rentiya argued that he is unemployable due to poor English, but when he arrived in Canada, his lack of English was not an obstacle to securing employment and I do not feel that today a lack of English should be an impediment from seeking employment in the future.

Accordingly, although the Arbitrators was satisfied that Mr. Rentiya has suffered a substantial inability to perform his pre-accident employment, but was not satisfied that Mr. Rentiya has suffered a “complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience” (the test for the period beyond two years following the accident).

Mr. Rentiya submitted an application claiming his injuries removed him from the Minor Injury Guideline of the Schedule based on impairments including a complete tear of the left knee, specifically to the medial meniscus, which would remove him from the limitations set out by the Minor Injury Guideline, along with claims that Mr. Rentiya was diagnosed with trauma, Major Depressive Disorder, and post-traumatic insomnia, a Chronic Adjustment Disorder, and Adjustment Disorder, and chronic pain. He also claims that pre-existing health conditions worsened.

Wawanesa submits that Mr. Rentiya has not produced sufficient evidence to support removing him from the Minor Injury Guideline. Wawanesa submits that the day following the accident an x-ray on his left knee showed no abnormality in the knee. On January 26, 2012, Mr. Rentiya’s family doctor did an examination of the knee which showed a good range of motion and no other abnormalities. In April 2012, an orthopaedic assessment on Mr. Rentiya revealed that there was no objective injury compatible with the examination. Following the MRI conducted in August 2013, Mr. Rentiya’s family doctor referred him to an orthopaedic surgeon at Toronto East General Hospital, who saw him in October 2013 and noted that Mr. Rentiya had a normal MRI.

Wawanesa argues that the August 13, 2013 MRI is not causally related to the accident, nor is it of a clinical significance to warrant treatment outside of the parameters of the Minor Injury Guideline. In addition, Wawanesa submits that with respect to the claims for dysfunction as a result of trauma, the assessment in March 2012 revealed symptom embellishment and sub-optimal effort on the part of Mr. Rentiya, not yielding objective and reliable evidence to support the presence of an accident-related psychological impairment. A psychiatrist assessed Mr. Rentiya on June 19, 2013 and found that Mr. Rentiya did not have a psychiatric illness or diagnosis, and felt that additional psychological treatment was not reasonable and necessary. His evidence at the Hearing confirmed that he stood by these original conclusions and opinions. He felt that Mr. Rentiya’s behaviour in purchasing a new car and driving immediately after the accident were not compatible with someone having driving anxiety. Wawanesa submits that Mr. Rentiya has not produced any compelling evidence that psychological impairments or chronic pain are predominant post-accident injuries sufficient to remove him from the parameters of the Minor Injury Guideline.

The onus of proof is with Mr. Rentiya to establish that the injury falls outside the Minor Injury Guideline. He has not proven this.  

Upon reviewing the law and all of the testimony the Arbitrator determined that that Mr. Rentiya is subject to the provisions of the Minor Injury Guideline.

 

 

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Minor Injury Guidelines, Personal Injury

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