April 11, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Michael Kelly
Date of Decision: November 10, 2014
Manuel Hernandez was injured in a car accident on May 14, 2011, while riding a TTC streetcar with his daughter was seated next to him in the window seat. The streetcar was hit from the rear by another streetcar. Mr. Hernandez was thrown forward, then backwards. He testified that he struck his knees on the back of the seat in front of him, and bounced back, striking his back on the seat-back. His daughter was also injured. He applied for Weekly Non-Earner Benefits from TTC Insurance payable under the Schedule. TTC denied the claim. The parties were unable to resolve their disputes through mediation, and Manuel Hernandez applied for arbitration at the Financial Services Commission of Ontario.
The issues in this Hearing are:
Is Manuel Hernandez entitled to receive a non-earner benefit?
Mr. Hernandez is not entitled to receive a non-earner benefit.
The TTC does not contest the evidence of an accident.
Mr. Hernandez claims that he injured both knees (predominantly the right knee) and his back. After a short engagement with TTC personnel and police at the scene, Mr. Hernandez, concerned about his daughter’s condition, proceeded with his daughter directly to the Sick Children’s Hospital by ambulance. He returned home with his daughter by taxi that night. He attended upon his family doctor. Mr. Hernandez claims that as a result of the TTC accident, and within 104 weeks thereafter, he has suffered a complete inability to live a normal life, as defined in s. 3. (7) of the Schedule. He identifies the following activities, and life circumstances, that characterized his pre-accident normal life, and the alleged changes to those activities caused by the accident, caused by back and knee pain and emotional and psychological distress as follows:
He is no longer able to work as a painter and other work is unavailable to him in Ontario because of his lack of formal education and lack of proficiency in English
The time he is able to spend with his daughter has been severely reduced by his inability to acquire improved living quarters, attributable to the financial restraints concomitant with being out of work
He is unable to attend Mosque and pray on his knees experiencing a troubling reduction in the emotional support and satisfaction that he had previously enjoyed from the exercise of his religion.
He is unable to attend the gym as frequently as he did before, and is not able to do the same exercises as before,
He is no longer able to attend to household duties, or to go shopping and do laundry
TTC questions the validity of Mr. Hernandez testimony, given the serious depression, anxiety, sleeplessness, tremors, pessimism, and right knee pain that Mr. Hernandez was suffering subsequent to a September 2010 surgery according to various medical reports and particularly the clinical notes and records. TTC takes the position that the physical and emotional complaints of Mr. Hernandez pre-exist the accident, and that the medical records show a steady improvement of pre-existing conditions. In any case, the TTC disputes that Mr. Hernandez has injuries that result in a complete inability to live a normal life as defined in the Schedule. The TTC also raised the fact that Mr. Hernandez did not deliver a Disability Certificate in accordance the SABS, and consequently was deprived of the right to advance his claim. Mr. Hernandez failed to call oral evidence of treating healthcare providers, and to produce certain documentary evidence. TTC provided the insurer’s reports which concluded Mr. Hernandez had psychological and physical injuries that predated the accident. Surveillance conducted in February and November 2012 showed Mr. Hernandez living his day to day life with no obvious sign of physical compromise.
The Arbitrator reviewed the law in this case. The onus is on Mr. Hernandez to prove what injuries the TTC accident caused, and to prove his complete inability to carry on a normal life as outlined in the schedule.
Mr. Hernandez testified on his own behalf. He did not provide current records of his drug requirements, nor call his treating physicians to testify. There was no reference in his medical documentation that he discussed his Islamic faith or reduced religious experience with any of his treating practitioners. He claims a reduced ability to do laundry and shopping, and to attend to his personal care. He found making his double bed too difficult and switched to a twin bed. His daughter’s visits were fewer, and she no longer came for overnight visits pursuant to a family court order, on the application of his wife. The reason for such reduction was not addressed in the evidence. Mr. Hernandez did not provide any gym attendance records for the period before or after his accident.
Based on the medical assessments provided the Arbitrator concluded that Mr. Hernandez suffered soft tissue injury to his low back and right knee, and some psychological impact as a result of the TTC accident. The Arbitrator also concluded that Mr. Hernandez failed to prove, on balance of probability, that the accident caused any significant injury or impairment, or exacerbated his pre-accident physical or psychological condition. He was never continuously prevented from engaging in substantially all of the activities in which he normally engaged before the accident. Mr. Hernandez has not satisfied the burden of proof that s. 3. (7) of the Schedule requires.
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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.