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Insured's evidence not clear on ability to get back to work or not.

June 13, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: December 2, 2014

Heard Before: Adjudicator Marshall Schnapp

 

REASONS FOR DECISION

 

Issues:

 

Ms.  Rita Boateng, was injured in a car accident on July 1, 2011. She was in the front passenger seat of a car which left the road travelling approximately 30 km/hour, rolled into a ditch and flipped over landing on its roof.  Ms. Boateng was able to get out of the vehicle on her own and was taken to hospital by ambulance.  On examination, emergency room staff noted a small contusion above her left eye with complaints of a headache in the same area.  She also complained of dizziness. Prior to the accident Ms. Boateng lived alone and worked full time in the food services industry.

 

As a result of the accident she sought accident benefits from State Farm Mutual Insurance Company, but the parties were unable to resolve their disputes through mediation, and Ms. Boatengapplied for arbitration at the Financial Services Commission of Ontario.

 

The issues in this Preliminary Hearing are:

 

  1. Is Ms. Boateng entitled to receive a weekly income replacement of $400 per week for the period of June 13, 2013, to date?

  2. Is Ms. Boateng entitled to receive attendant care benefits at the rate of $779.12 per month from the date of the accident to date?

  3. Is Ms. Boateng entitled to receive medical benefits for various modalities of treatment totalling $10,392.46?

  4. Is Ms. Boateng entitled to receive a special award because State Farm unreasonably withheld or delayed payments to Ms. Boateng?

  5. Is Ms. Boateng entitled to interest for the overdue payments of benefits?

 

Result:

 

  1. Ms. Boateng is not entitled to receive a weekly income replacement for the period June 13, 2013, to date.

  2. Ms. Boateng is entitled to receive attendant care benefits at the rate of $779.12 per month from December 2011 through June 2012, for a total payment of $5,453.84.

  3. Ms. Boateng is entitled to receive medical benefits for various modalities of treatment in the total amount of $4,904.30.

  4. Ms. Boateng is not entitled to receive a special award because State Farm unreasonably withheld or delayed payments to Ms. Boateng.

  5. Ms. Boateng is entitled to interest for the overdue payments of benefits.

 

Ms. Boateng received IRBs of $400/week for the period starting one week after the accident until June 13, 2013 (102 weeks) when State Farm discontinued payments.  She has not returned to work and receives Ontario Works benefits. She wanted to return to work but could not because of her physical condition. She claims she has reduced her socializing.

 

Rita Boateng who is 53 and emigrated from Ghana 30 years ago has completed the equivalent of a Canadian Grade 9 education in Ghana.  She had worked at a road-side stall before coming to Canada.  After immigrating to Canada she enrolled in an English as a Foreign Language course for 8 months.  She described her level of fluency in English as, “enough to get by”.  She eventually obtained employment in Canada working in factory assembly lines and at a meat-packing plant.

 

Ms. Boateng described her pre-accident work as full time rotating shifts, sometimes with overtime. She cleaned out airline beverage carts and restocked them. She was required to kneel and push the carts. Ms. Boateng stated that she began suffering debilitating pain, and some depression subsequent to the accident and was still experiencing significant pain.  She indicated that post-accident her son and his girlfriend moved in with her to help with self-care and transportation assistance. The girlfriend testified that she assisted Ms. Boateng with personal care and taking her to medical appointments after the accident. She was otherwise unemployed at the time and was receiving Ontario Works benefits. She had been promised to be paid by Ms. Boateng.She testified she needed their help until October 2012 when “she was able to take care of herself with difficulty”. 

 

Ms. Boateng’s English is limited.  She explained that she did not have to read English to do her job because she was provided with examples of how the trays were to be stocked. Other than claiming to have faxed a doctor’s note to her employer, she has not spoken with her union or her employer since the accident, nor has she looked for other work, or sought education or training. She claims intermittent knee pain, intermittent dizziness and headaches as the barriers to returning to work.

 

Ms. Boateng communicated with her doctors and other medical staff in broken English. Her primary physician confirmed he had provided a medical note to Ms. Boateng with the following diagnosis, “Cervical spinal myofacial injury;  Lumbo-sacral spinal myofacial injury; Laceration of the right knee; Right knee crush injury; Right shoulder crush injury; Crush injury to anterior chest and abdominal walls;  Right ankle joint sprain”. These injuries totally incapacitated her and even with drug and physical therapy treatments she did not recover.

 

The doctor suspects it is the cervical spine injury has resulted in a grossly impaired range of motion accompanied by pain. There is no previous injury on record. Her doctor concurs that she is unable to return to work at the present time, and that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. The doctor also agree that x-rays revealed an old injury but no fractures and only degenerative changes. He opined that Ms. Boateng’s pain was very real and, “most likely caused by the accident”.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Fractures, Pain and Suffering, Physical Therapy, Spinal Cord Injury, 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.

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