September 26, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: June 30, 2015
Heard Before: Adjudicator Jessica Kowalski
REASONS FOR DECISION
Iveta Cervenakova was injured in a car accident on May 11, 2010, when was a back seat passenger in a car struck from behind while attempting to make a right turn. Mrs. Cervenakova says that the entire lower half of her body, up to her waist, went under the front seat. Mrs. Cervenakova did not need medical attention at the scene, and there was no emergency response to the accident. She visited her family doctor the next day complaining of pain along the entire right side of her body, including her head, arm and leg.
She applied for and received statutory accident benefits from TD General. TD General subsequently terminated Mrs. Cervenakova’s benefits. Mrs. Cervenakova applied for arbitration at the FSCO.
Is Mrs. Cervenakova entitled to non-earner benefits of $185.00 per week from December 22, 2010 to date and ongoing?
Is Mrs. Cervenakova entitled to attendant care benefits of $1,160.81 per month from January 31, 2011 to May 10, 2012?
Is Mrs. Cervenakova entitled to housekeeping and home maintenance benefits of $100.00 per week from December 22, 2010 to May 10, 2012?
Is TD General liable to pay a special award because it unreasonably withheld or denied payments to Mrs. Cervenakova?
Is Mrs. Cervenakova entitled to interest on unpaid benefits?
Is either party liable to pay the other’s expenses of the arbitration hearing?
The application for arbitration is dismissed.
The issue of expenses may be resolved in accordance with Rules 75 through 79 of the
Mrs. Cervenakova claims that the accident caused psychological and physical injuries, including a meniscus tear in her right knee that have resulted in chronic pain, limiting her ability to look after herself and her home, and to enjoy her life in the way that she did before. She denies that she had any physical disabilities before the accident, save for flat feet and occasional headaches. Mrs. Cervenakova submits that that the trauma caused by the accident aggravated her schizophrenia and the pre-existing pain she did have, and caused new injuries that have resulted in a severe decline in her function and quality of life.
Although she qualified for disability benefits before the accident, Mrs. Cervenakova says that her health was improving. She says that any pre-existing conditions she did have did not interfere with an otherwise happy, sociable life. Before the accident, Mrs. Cervenakova says she enjoyed long walks with her husband, went dancing, enjoyed dressing up for social outings, and hosting guests at her home, where she says she did the cooking and cleaning.
TD General submits that the accident did not cause Mrs. Cervenakova’s pain or injuries and that she has a long-standing pre-accident history of the very complaints she seeks to attribute to the accident. TD General says that Mrs. Cervenakova has not been candid about her pre- and post-accident level of function and that she misled all assessors who examined her for accident benefits, she diminished or failed to disclose her significant pre-accident medical history and exaggerated her pre-accident health and post-accident limitations.
TD General submits that Mrs. Cervenakova blames limitations on the accident that pre-date the accident and for which Mrs. Cervenakova was already receiving a disability pension, and that she is not entitled to benefits beyond those it has already paid.
This case turned on the Arbitrator’s assessment of the credibility of Mrs. Cervenakova’s evidence and that of her husband, regarding Mrs. Cervenakova’s pre- and post-accident function.
During every assessment, Mrs. Cervenakova failed to disclose that she was in receipt of a disability pension before the accident on the basis of, among other things, musculoskeletal pain all over her body and on a complete dependency on her husband for the pre-accident housework and her personal care. By contrast, Mrs. Cervenakova claims accident benefits on the basis that she was independent in her self-care and did the bulk of the housework before the accident, notwithstanding that her disability pension considered that her husband did much of the family’s pre-accident housework, was her caregiver before the accident, and even declined the opportunity to participate in a work program in order to stay home and care for her full time.
Mrs. Cervenakova’s testimony was fraught with contradictions. The Arbitrator found that she minimized her significant pre-accident medical history, exaggerated her post-accident injuries, and testified that impairments which existed before the accident were caused by it. As a result her subjective accounts are unreliable unless they are supported by corroborating medical evidence.
The Arbitrator found that Mrs. Cervenakova’s subjective accounts, as well as her husband’s, are simply not reliable and cannot be believed without supporting objective medical evidence. Since this entire case turns on credibility and because Mrs. Cervenakova’s evidence not credible, she fails on each claim.