Insured's testimony consistent with medical evidence and entitled to income replacement benefits

May 09, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: November 24, 2014

Heard Before: Adjudicator Stuart Mutch

 

REASONS FOR DECISION

 

Samantha Batuzskin was injured when she was hit from behind at a high rate of speed on a rural highway. Her car spun several times and was launched into a farmer’s field. She experienced immediate pain, but drove her car back onto the road and followed the person to their house and called the police. She was 23 and self employed as a landscaper when hurt in the car accident on September 12, 2008. She applied for benefits from TD General Insurance Company. Disputes arose, the parties were unable to resolve their disputes through mediation, and Ms. Batuzskin applied for arbitration at the FSCO.

 

Issues:

 

The parties identified the following issues:

 

  1. Is Ms. Batuzskin entitled to receive a weekly income replacement benefit at the rate of $198.83 per week from September 20, 2008 to April 30, 2009 and in varying amounts thereafter, to date and ongoing, pursuant to the Schedule?

  2. Is Ms. Batuzskin entitled to attendant care benefits pursuant to the Schedule, at the following rates:

    1. $440.73 per month from September 12, 2008 to March 12, 2009, and

    2. $150.55 from March 13, 2009 to September 12, 2010?

  3. Is Ms. Batuzskin entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from September 12, 2008 to September 12, 2010, pursuant to the Schedules?

  4. Is Ms. Batuzskin entitled to receive various listed medical benefits?

  5. Is Ms. Batuzskin entitled to payments for the cost of various listed examinations?

  6. Is Ms. Batuzskin entitled to payment in the amount of $2,102.93 for an accounting report?

  7. Is TD General liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Batuzskin?

  8. Is TD General liable to pay Ms. Batuzskin’s expenses in respect of the arbitration?

  9. Is Ms. Batuzskin liable to pay TD General’s expenses in respect of the arbitration?

  10. Is Ms. Batuzskin entitled to interest for the overdue payment of benefits?

 

Result:

 

  1. Ms. Batuzskin is entitled to weekly income replacement benefits in the amount of $198.83 from September 12, 2008 to April 30, 2009, and in the amount of $63.76 for the period October 16, 2009 to December 31, 2009 and in the amount of $32.16 from January 1, 2010 to September 11, 2010. Ms. Batuzskin is not entitled to weekly income replacement benefits in the post-104 week period.

  2. Ms. Batuzskin is entitled to attendant care benefits in the amount of $440.73 per month from September 12, 2008 to March 12, 2009 and in the amount of $150.55 from March 13, 2009 to September 12, 2009.

  3. Ms. Batuzskin is entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from September 12, 2008 to March 12, 2009 and $50.00 per week from March 13, 2009 to September 12, 2009.

  4. Medical benefits:

 

  1. Ms. Batuzskin is not entitled to her claim for prescription medications in the amount of $228.63.

    1. Ms. Batuzskin is not entitled to the cost of physiotherapy as set out in the OCF-18 dated May 22, 2009, in the amount of $1,707.70

    2. Ms. Batuzskin is entitled to the costs of chiropractic treatment as set out in an OCF-18 dated June 22, 2009, in the amount of $843.75.

    3. Ms. Batuzskin is entitled to the costs of Occupational Therapy sessions as set out in an OCF-18, dated February 24, 2010, in the amount of $2,338.80 and in the OCF-18, dated March 22, 2010, in the amount of $788.92.

    4. Ms. Batuzskin is not entitled to the costs of Occupational Therapy sessions, as set out in the OCF-18 by Rehab First in the amount of $2,815,45.

    5. Ms. Batuzskin is not entitled to the cost of social work treatment for mental health therapy as set out in the OCF-18s dated September 1, 2011 and October 8, 2011.

    6. Ms. Batuzskin is not entitled to the remainder owing on the OCF-18 dated April 11, 2012, for transportation costs.

    7. Ms. Batuzskin is not entitled to the cost of a mattress, mattress pad, foam pillow, Differin Gel-acne, Banazclin pump-acne, Ranitidine-ulcers, Advil, in the amount of $2,026.06 as set out in the OCF-6 dated October 22, 2012.

  2. For Examinations:

 

  1. Ms. Batuzskin is entitled the cost of an examination, specifically the OCF-22 for $1,812.53.

  2. Ms. Batuzskin is entitled to the costs as set out in an OCF-18 for a psychological assessment.

  3. Ms. Batuzskin is not entitled to the costs as set out in as OCF-18 for a post-104 chronic pain assessment.

 

6.     Ms. Batuzskin is not entitled to a Special Award.

 

7.     If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.

 

8.     TD shall pay interest as set out in the Schedule from the dates specified in this decision.

 

EVIDENCE AND ANALYSIS

 

Prior to the accident Ms. Batuzskin was in excellent health and physically active in her work and personal life. Within 24 hours of the accident she began to experience excruciating neck pain and was unable to turn her head. She went to the hospital the following day where she was advised she had mononucleosis. The following day she attended her family physician who diagnosed Type II whiplash as a result of car accident. The doctor noted complaints of headache and back and neck pain. He gave her a prescription for chiropractic treatment. She attended chiropractic therapy, and physiotherapy, and claimed she was useless for six months post-accident. She required extensive assistance with personal care and housekeeping.

 

In Januraly 2009 a progress note from physiotherapy indicated she had considerable back and neck discomfort and that she could not do her regular activities. Ms. Batuzskin did not return to landscaping and took up housecleaning on a limited basis. Some evidence indicates that Ms. Batuzskin may not have been entirely forthright about her activity level in the six months post-accident.

 

In the six to twelve months after the accident Ms. Batuzskin testified that she had better control of her pain crediting physiotherapy for increasing her mobility. She testified that in May 2009 she returned to paid employment in the form of housecleaning on a limited basis.

 

In June 2009 Ms. Batuzskin fell from a boat that was stored in her backyard. She broke a bone in her foot and wore an air cast for two months.  In July 2009 TD stopped funding physiotherapy. Ms. Batuskin stopped this treatment and noted deterioration in her condition and increasing pain.

 

Ms. Batuzskin indicated that she resumed physiotherapy in February 2010, funding it herself, but was unable to continue for financial reasons. In August 2010 she was diagnosed with Chronic Pain Syndrome by a family physician with a practice in chronic pain management. In May 2011 she complained to her family doctor of a flare up of neck and back pain. In October 2011 she was complaining of severe back pain. In December 2011 her family doctor’s notes indicate that Ms. Batuzskin started to suffer significant emotional distress. She was exhausted, sleeping poorly and very frustrated with ongoing neck and back pain. In December Ms. Batuzskin was diagnosed as suffering from a major depressive disorder and generalized anxiety disorder, and with chronic pain syndrome, specifically headaches, musculoskeletal neck pain, musculoskeletal upper and lower back pain.

 

By April 2012 Ms. Batuzskin reported to her doctor that her life was “out of control”, that her relationship with her common law husband had broken down and that she couldn’t cope. She was prescribed Cymbalta, which Ms. Batuzskin described in her testimony as very helpful and began to improve in May. She continued to work about four days per week. In April 2013 she settled her tort claim. In September 2013 she stopped cleaning houses all together. She testified that one of her customers had moved to a home that was too large for her to manage.

 

The Arbitrator reviewed the facts of the case and the schedule. He determined the schedule provides that the insurer shall pay to a person who suffers a benefit as a result of an accident, all reasonable and necessary expenses for services provided by an aide or attendant.

 

Ms. Batuzskin required the aid of her common law spouse extensively in the first 6 months following her accident to perform personal care. There were two Form 1s prepared in March of 2011 by SS occupational Therapist. The Arbitrator determined that they accurately reflected the evidence given by Ms. Bauzskin and her spouse.

 

TD takes the position that no Attendant Care benefits are payable prior to the submission of the Form 1. In a letter dated December 5, 2012, TD claims it has not received a Form 1. However in a letter dated March 21, 2011, TD acknowledges receipt of the Form 1. It relies on section 39(3) of the Schedule which states that an insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs by a member of a health profession who is authorized by law to treat the person’s impairment.

 

The Arbitrator reviewed the law and determined that Ms. Batuzskin’s tardy submission of the Form 1 does not take away from credible evidence that she required attendant care, to varying degrees in the year following the accident.

 

The schedule provides that the insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of the insured person for housekeeping and home maintenance services if the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. Based on the evidence before him, the Arbitrator was satisfied that she was substantially unable to perform her housekeeping and home maintenance tasks for six months, or 26 weeks following the accident. He did note that Ms. Batuzskin’s return to housekeeping as a vocation in May 2009 calls into question her inability to perform housekeeping tasks.

 

Following the fall in which she broke her foot it was recommended she needed further chiropractic and physiotherapy care by her Doctor and her physiotherapist.  The Arbitrator noted that he could not determine causation of the injuries.

 

The Arbitrator noted Ms. Batuzskin and her spouse were consistent throughout the time period in all evidence they gave to the various individuals who assessed her, and found Ms. Batuzskin was substantially unable to perform her housekeeping tasks for the 26 weeks after the accident and that she is entitled to the maximum weekly amount claimable for this period.

 

Ms. Batuzskin’s testimony and the documentary evidence provided indicates a gradual, although not complete, return to her housekeeping activities from six months post-accident onward. On the basis of the foregoing, the Arbitrator found that Ms. Batuzskin required housekeeping assistance on a reduced basis for a further six months to the first anniversary of the accident, and awarded her $50 per week for housekeeping assistance over this 26-week period. 

 

The Schedule provides that an insurer shall pay to an insured person an income replacement benefit if the insured person suffers a substantial inability to perform the essential tasks of his or her employment within 104 weeks of the accident. Ms. Batuzskin claimed Income Replacement Benefits in varying amounts from the date of the accident and ongoing.

 

At the time of the accident Ms. Batuzskin was a self-employed landscaper. She had started her landscaping business the previous May. She was also a house cleaner on a part-time basis. The Arbitrator found that for the first 26 weeks following the accident, Ms. Batuzskin was substantially unable to perform housekeeping and home maintenance tasks, and therefore that she was substantially unable to perform the equally, if not more strenuous, essential tasks of her pre-accident employment, namely, landscaping for 26 weeks following the accident. Based on the evidence presented and the testimony of Ms. Batuzskin the Arbitrator was satisfied that she was substantially unable to do the essential tasks of that employment for the 104-week period following the accident.

 

Entitlement to Post-104 Week Benefits

 

The Arbitrator reviewed the evidence and testimony and determined that Ms. Batuzskin is capable of performing a physically undemanding job, perhaps in an office setting in addition to, or in place of her cleaning job believing her capable of completing a course in basic office or computer skills in order to make that a realistic option. On that basis she does not meet the test for entitlement to post-104 week income replacement benefits.

 

The schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person for certain medical goods and services and that the insurer shall pay for all reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his family, the rest of society and the labour market. The Arbitrator reviewed each individual claim and on the basis of evidence made his decisions.

Posted under Accident Benefit News, Car Accidents, Chronic Pain, Disability Insurance, Fractures, Pain and Suffering, Physical Therapy, Slip and Fall 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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