Insurer's medical examiner did not consider family doctor's records

November 22, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Eban Bayefsk

Date of Decision: 2014-10-09,

 

REASONS FOR DECISION

 

Issues:

 

Jin Xing Cai injured in a car accident on January 7, 2009.  His car spun out of control in snowy conditions, hit a curb and then collided with another vehicle. Mr. Cai was taken by ambulance to Scarborough Grace Hospital (where he was diagnosed with a ruptured spleen) and then transferred to St. Michael’s Hospital to undergo abdominal surgery. He was discharged after a week, with prescriptions for painkillers and sedatives to help him sleep. He was re-admitted to hospital 1 month later with severe abdominal pain and was advised to avoid strenuous physical activity for another two months. He continues to have pain and various psycho-emotional injuries to this day.

 

He applied for and received statutory accident benefits from State Farm, however, State Farm denied some of Mr. Cai’s claims. The parties were unable to resolve their disputes through mediation, and Mr. Cai applied for arbitration at the FSCO.

 

The issues in this hearing are:

 

  1. Is Mr. Cai entitled to income replacement benefits, from March 23, 2010 to January 7, 2011?

  2. Is State Farm entitled to deduct from any income replacement benefits owing to Mr. Cai post-accident employment income?

  3. Is Mr. Cai entitled to attendant care benefits, from May 1-7, 2009, at a rate of $2,947.12 per month, and from May 8, 2009 to October 3, 2010, at a rate of $2,035.20 per month?

  4. Is Mr. Cai entitled to housekeeping benefits, from April 7, 2010 to October 3, 2010, at a rate of $100 per week?

 

Result:

 

  1. Mr. Cai is entitled to income replacement benefits, from March 23, 2010 to January 7, 2011.

  2. State Farm is entitled to deduct from the income replacement benefits owing to Mr. Cai the post-accident employment income he received.

  3. Mr. Cai is not entitled to attendant care benefits.

  4. Mr. Cai is not entitled to housekeeping benefits.

  5. State Farm shall pay to Mr. Cai interest on any income replacement benefits owing to Mr. Cai following the deduction of post-accident employment income.

 

Mr Cai’s claim for IRBs was based on his entitlement pursuant to the Schedule. The Arbitrator reviewed the facts of the case. Mr. Cai was employed as a chef at the time of the accident working for 60-70 hours a week doing demanding physical work. He claimed that post-accident he was unable to return to work immediately. His chef job had been filled by someone else when he finally returned to the employer two years later part time. Several medical professionals examined Mr. Cai and in July 2009, he was issued a Disability Certificate stating that Mr. Cai was substantially unable to perform his pre-accident work activities, explaining that Mr. Cai “may have difficulties in performing his regular work duties as a chef in a restaurant.”

 

An Insurer Examination reported that Mr. Cai could return to work despite his pain and without fear of re-injury. The physician testified that he did not test Mr. Cai’s ability to lift a 50-60 pound weight, nor did he review the family doctor’s notes or the hospital notes, but that in seeing what they had said regarding the nature of Mr. Cai’s problems, it would not alter his opinion at all that, from a musculoskeletal perspective, there were no limitations to Mr. Cai performing his pre-accident work. The Arbitrator did not prefer his evidence.

 

A Functional Capacity Evaluation concluded that “certain tasks are tolerable and with some modification can be managed without significant difficulties. However the full scale pre-accident workload… responsibilities are limited at this time due to symptom aggravation and significant pain.”

 

The Arbitrator reviewed the evidence and found that, while Mr. Cai may have required some level of attendant care from May 2009 to October 2010, he has not established that he required the amounts claimed, and thus Mr. Cai is not entitled to the attendant care benefits claimed.

 

The Arbitrator reviewed Mr. Cai’s claim to housekeeping benefits and determined that while Mr. Cai may have required a certain degree of housekeeping assistance after the Insurer terminated benefits, his evidence was not reliable and therefore, he has not established that he is entitled to the housekeeping benefits claimed.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Fractures, Pain and Suffering, Paraplegia

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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.

Practice Areas

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  9. Amputation and disfigurement

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