December 21, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Jessica Kowalski
Date of Decision: September 12, 2014
Ettore Gallo was injured in a car accident on December 8, 2008. Mr. Gallo was on his way to work when a pick-up truck proceeded through a red light and struck his car on the rear driver’s side. Mr. Gallo hit the left side of his head on the centre seat post. He did not know if he lost consciousness. An ambulance attended and took him to hospital. According to hospital records Mr. Gallo’s neck was not tender. He had full range of motion. He had a hematoma on the left side of his head. It was noted there was minimal damage to Mr. Gallo’s car and no loss of consciousness, but that he complained of tingling in his hands bilaterally. He was discharged after approximately one hour with advice regarding head injury precautions and over-the-counter pain medication, if needed.
Shortly after his discharge from the hospital, Mr. Gallo began to experience pain affecting his neck, left shoulder and lower back. Subsequent x-rays of Mr. Gallo’s head, neck and back revealed no fractures. An ultrasound of his left shoulder revealed no tears. He was diagnosed with soft tissue injuries, and referred to an orthopaedic specialist who diagnosed whiplash and tight muscles.
At the time of the accident, Mr. Gallo was employed as an auto body technician. He has not returned to any type of work since the accident.
He applied for and received statutory accident benefits from CUMIS General Insurance. CUMIS paid income replacement benefits (“IRBs”) to Mr. Gallo until August 21, 2011, notwithstanding a stoppage purporting to take effect October 28, 2010. CUMIS also terminated housekeeping and home maintenance benefits effective October 20, 2010, and only partially approved psychological treatment recommended in 2012. Mr. Gallo disputed CUMIS’ termination of benefits. The parties were unable to resolve their disputes through mediation, and Mr. Gallo applied for arbitration at the Financial Services Commission of Ontario.
Mr. Gallo was injured seriously in another car accident in 2010 which is not subject of this FSCO Arbitration.
Is Mr. Gallo entitled to a weekly IRBs of $400.00 per week from December 8, 2008 to date and ongoing?
Is Mr. Gallo entitled to housekeeping and home maintenance benefits in the amount of $30.00 per week from October 20, 2010 to December 7, 2010?
Is Mr. Gallo entitled to a medical benefit in the amount of $5,371.70 (less $2,305.60 paid) for psychological treatment by Kaplan & Kaplan recommended in a treatment plan (OCF-18) dated June 26, 2012?
Is CUMIS liable to pay a special award because it unreasonably withheld or denied benefits?If so, in what amount?
Is Mr. Gallo entitled to interest on unpaid benefits?
Mr. Gallo is not entitled to a weekly income replacement benefit from December 8, 2010 onwards.
Mr. Gallo is not entitled to housekeeping and home maintenance benefits from October 20, 2010 to December 7, 2010.
Mr. Gallo is not entitled to further payment toward the psychological treatment recommended by Kaplan & Kaplan in a treatment plan dated June 26, 2012.
CUMIS is not liable to pay a special award.
Because there were no outstanding benefits, there is no order for interest.
Income Replacement Benefits
Mr. Gallo contends he is unready to enter the workforce in any capacity due to a combination of physical and psychological impairments. He states his injuries create physical limitations and psychological problems which prevent him from pursuing any of his pre-accident jobs or other employment for which he may be reasonably suited by his education, training or experience. He also contends CUMIS was not reasonable in terminating his benefits, and that CUMIS should assist in retraining him.
CUMIS submits that not only is Mr. Gallo able to return to his pre-accident employment as an auto body technician, but that he has experience in a number of other jobs for which he is reasonably suited because of his training, education or experience and which CUMIS says are of a quality and ease that Mr. Gallo could return to them if he so chose. Apart from being able to return to his employment as an auto body technician, CUMIS argues that Mr. Gallo is not impaired from returning to a job in car sales, work he also engaged in before the accident.
CUMIS concedes that it failed to issue a proper notice of termination and continued to pay Mr. Gallo IRBs to August 21, 2011 based on functional ability evaluations and orthopaedic reports. CUMIS did not seek a repayment of the IRBs paid after October 28, 2010; however, it disputes that Mr. Gallo was entitled to IRBs after that date. The onus is on Mr. Gallo to prove he suffered a substantial inability to perform the essential tasks of his employment at the time of the accident.
In order for Mr. Gallo to be entitled to receive IRBs for any period longer than 104 weeks of disability after the accident he must prove that as a result of the 2008 accident he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.
The Arbitrator reviewed the evidence and law. CUMIS submitted video evidence which the Arbitrator accepted. Mr. Gallo failed to mention his serious injuries from a second car accident at the 104 week assessments, preferring to blame the first accident for the impairments sustained in the second. This further weakened his position in the eyes of the Arbitrator. The Arbitrator concluded that Mr. Gallo’s oral evidence regarding his soft tissue injuries was not consistent with either the insurer’s assessors, nor with the video surveillance shown at the hearing. On that basis he gave no credibility to Mr. Gallo’s testimony.
The Arbitrator found that Mr. Gallo did not meet the burden of proof that he is completely unable to engage in any employment for which he is reasonably suited by education, training, or experience. The Arbitrator found that Mr. Gallo’s evidence was not credible on significant points, and that he gave no meaningful consideration to employment for work he for which he was reasonably suited by education, training or experience. The Arbitrator found that Mr. Gallo’s return to work was complicated at the 104-week mark not by impairments suffered in the 2008 accident, but by complications as a result of the 2010 accident.
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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.