January 16, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Richard Feldman
Date of Decision: May 7, 2015
Danny Basson was in a car accident on April 26, 2011. He was a seat-belted, driver-side, rear-seat passenger in a car that was struck by another car on the front passenger side. He testified that parts of his body struck the door to his left, and he was shaken and waited inside the vehicle. He took a taxi home from the scene of the accident and then sought medical attention a few days later (the records disclose that he attended a medical clinic on April 30, 2011). He then visited Mackenzie Medical Rehabilitation Centre on May 2, 2011 where he was assessed and received treatment from May through September 2011, 2-3 times a week then gradually decreasing. Mr. Basson testified that this treatment helped a little, but not much.
He applied for statutory accident benefits from Royal & SunAlliance but when disputes arose concerning his entitlement to certain accident benefits he applied for arbitration at the FSCO.
The issues in this hearing are:
Is Mr. Basson entitled to receive a medical benefit in the total amount of $4,785.35 for services provided by Mackenzie Medical between May 2, 2011 and May 28, 2012?
Is Mr. Basson entitled to receive weekly income replacement benefits (“IRBs”) from May 2, 2011 onwards (less amounts paid by Royal) and, if so, at what weekly rate?
Is Mr. Basson entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is Royal and SunAlliance liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Basson?
Is Mr. Basson liable to pay Royal and SunAlliance’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Royal and SunAlliance liable to pay Mr. Basson’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Mr. Basson’s claims are dismissed.
The issue of the expenses of this proceeding is deferred.
EVIDENCE AND ANALYSIS:
Mr. Basson’s primary reported complaints immediately following the accident included relatively uncomplicated soft-tissue injuries with no evidence of any bone fractures or any complete tears of muscles, tendons or ligaments or complete dislocation of any joints. Many assessors (including his own) diagnosed Mr. Basson with a grade I or II whiplash associated disorder as well as other soft-tissue injuries. Mackenzie submitted various treatment plans to Royal and SunAlliance, seeking funding for proposed assessments and treatment. Royal and SunAlliance they took the position that Mr. Basson had sustained “minor injury” impairment as defined in the Schedule. Royal and SunAlliance initially denied the plans because they were submitted on the incorrect form and requested the correct forms be used. Mackenzie never responded to this request for evidence but in August 2011 filed the correct form. Royal and SunAlliance then paid the maximum amount payable for assessment and treatment of a minor injury. Royal and SunAlliance has maintained its position that Mr. Basson’s impairment is predominantly a “minor injury” and has refused to pay for the cost of any additional assessment or treatment.
Mr. Basson testified that, prior to this accident, he was working at an employment agency where he did clerical work, errands and forklift operator training for the agency. The employer provided evidence that Mr. Basson worked 28 weeks prior to the accident and earning $560.00 weekly. Mr. Basson testified, however, that arrangement between him and the agency was much less formal and that he was paid an hourly wage; that varied from week to week; that no records were kept concerning his hours or his pay; and that he received a cash payment each week of about $400.00. The agency did not issue T4 forms to Mr. Basson prior to the death the owner in late 2012. The income earned by Mr. Basson for his work at Global Employment Agency in 2010 and 2011 was not reported by him to Canada Revenue Agency. After the accident, Mr. Basson did not return to his job at Global Employment Agency.
Although Mr. Basson testified that he had not been given T4 forms nor did he report his income to Canada Revenue Agency some T4s were provided to Mr. Basson for 2010 and 2011 but they contained no date or signature to verify their accuracy. This was of concern to Royal and SunAlliance who raised it as a ‘Preliminary Issue’ having to do with the denial of the IRB claim.
Mr. Basson applied for and received income replacement benefits from Royal and SunAlliance in the amount of $392.00 per week from May 3, 2011 through September 16, 2011 (a total of $7,672.00). These benefits were terminated effective September 16, 2011 when a number of insurer examinations which concluded that Mr. Basson was not, as a result of the accident, suffer a substantial inability to perform the essential tasks of his pre-accident employment.
On November 14, 2011, Mr. Basson working as a forklift operator but he claims his performance at work was adversely affected by pain in his back and shoulder and, in November 2012, he was “let go” by Globetrotter due to his poor work performance. Mr. Basson testified that he did not work for 14 months when he started working one day per week.
The Arbitrator indicated Mr. Basson’s credibility is crucial as this is a case where extent of pain is at the core. His fair and accurate reports of pre-accident medical history and employment, and post-accident function are necessary. Mr. Basson’s accurate pre-accident income and employment reporting is required for his IRB claim. Any factual inconsistencies, misrepresentations or material non-disclosure of relevant, suspicious circumstances or lack of corroboration can all be fatal to an applicant’s claims.
Mr. Basson had been involved in a previous car accident but denied having been in one to numerous medical professionals. Reports concerning pre-accident medical history. Mr. Basson gave evidence to the Arbitrator which directly contradicted that he gave the medical assessors. The Arbitrator concluded that Mr. Basson’s accounts of his history were not reliable.
Mr. Basson’s Employer’s Confirmation Form which he signed In June 2011 indicated that he had been employed as an “employment consultant” and that his job was to “train employees, solicit employment, escort new employees to their new job, counselling employees”. This form also indicated that Mr. Basson was paid gross weekly income of $560.00 per week and had been employed for 28 weeks. To his physicians he reported he had been employed for 5 years at the agency as a forklift operation trainer working 40-50 hours a week. He then testified that he spent half his time running errands. Mr. Basson has no drivers licence due to his failure to pay child support. The Arbitrator concluded that if part of his job was driving, this legal matter may have been a factor in his not returning to work at the agency.
The Arbitrator agreed with Royal and SunAlliance circumstances surrounding Mr. Basson’s employment raised questions about his pre-accident employment and income. However, the information concerning Mr. Basson’s pre-accident employment and income is fairly consistent not nearly as much concern as the failure of Mr. Basson to accurately report details of his post-accident employment and income.
According to his revised income tax returns, Mr. Basson's income in 2010 from EI and the employment agency was $24,070, largely from EI. In 2011 was $22,676 ($6,685 in RRSP income and the rest form working). Mr. Basson claims that, as a result of his accident-related impairments, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. It was not until shortly before the hearing that Mr. Basson produced a printout from Canada Revenue Agency of his reported income for 2012 and 2013.
Mr. Basson clearly worked most of 2011 as a forklift operator and it was a more physically-demanding job than the one he had done prior to the accident. Post-accident he worked without interruption, from November 2011 through November 2012 earning $54,672 in 2012. Refuting his claim that he was let go for poor performance (due to his impairments) in 2011 his ROE from the employer suggested there was a shortage of work. No witness was called from the company. Contrary to his claim that he didn’t work between November 2012 and June 2014 his 2013 T4 showed an income of $21,495. Mr. Basson stated that he could not recall working in 2013 and could not identify his employer.
Mr. Basson stated that he started that job in May or June 2014, one 12 hour day a week cleaning fish. He produced a pay stub showing an employment agency as the issuer, not the employer that he claimed. Under the heading, “Year to Date Totals” to August 2014, Mr. Basson had already earned gross employment income in 2014 from the Employment Agency of $19,844.44. Mr. Basson then admitted he had been working more than he claimed in 2013 and 2014.
Royal and SunAlliance has maintained its position that Mr. Basson’s impairment is predominantly a minor injury. Mr. Basson argued his impairments did not fall within the MIG as he suffers chronic pain.
The Arbitrator found that Mr. Basson failed to provide compelling evidence that would exclude him form the MIG. The Arbitrator found that pre-accident health information was in question due to Mr. Basson’s credibility. The Arbitrator conclude Mr. Basson’s injuries to fall within the MIG and the benefits were pain in full by Royal and SunAlliance.
Upon review of all of the evidence and testimony the Arbitrator found Mr. Basson's disclosure of his post-accident employment and income has been untimely, unreliable and incomplete. He had demonstrated the ability to do numerous, physically-demanding jobs for significant periods of time post-accident, was less than forthcoming with details of the jobs or the income.
The Arbitrator determined Mr. Basson an unreliable witness, and was not satisfied that that Mr. Basson has proven that his ongoing symptoms of pain were caused by the 2011 accident. Due to glaring factual inconsistencies and suspicious claim circumstances the Arbitrator determined Mr. Basson not credible.