October 10, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Joyce Miller
Decision date: August 17, 2007
Sophia Sun was injured in a car accident on July 9, 2005. She applied for and received accident benefits. Wawanesa terminated weekly income replacement benefits (IRBs) and denied payment of a psychological assessment.
In the car accident Ms. Sun was a passenger in a car that was rear ended. The impact caused her to jolt back and hit her head on the headrest. She immediately felt pain, confusion and shock. The next day the pain spread throughout her body with the worse pain in her lower back. In the initial disability certificate she was diagnosed with a neck injury WAD II, lumbar-sacral strain, tension headaches and anxiety. At the time of the arbitration, Ms. Sun continued to have pain in her lower back, neck, hip area, feet and ankles. She continued to have headaches and could not sleep well. Her back pain increased with sitting.
Ms. Sun indicated that she cried a lot, was easily irritated and became angry and short-tempered with friends. She also indicated continuing problems with sleep, memory and concentration. She stated that she could not work due to pain and she was depressed because of that.
Wawanesa argued that Ms. Sun was not a credible witness and that she did not sustain any injuries outside of the WAD II injury.
The arbitrator assessed the issue of credibility first. After reviewing the evidence the arbitrator held that where there were inconsistencies and contradictions in the evidence they did not affect the substantial and material elements of Ms. Sun´s testimony.
Wawanesa alleged that Ms. Sun´s failure to remember her family doctor´s name or the date that she started her employment was evidence affecting her credibility. The adjudicator did not consider these substantial, especially given that she testified that she had memory and concentration problems. It should be pointed out that Ms. Sun did not write or speak English and required the assistance of an interpreter for the hearing.
Wawanesa argued that where an insured is diagnosed with a WAD II and is later diagnosed with an injury that is a direct result of the car accident, but appears after 16 weeks, then the applicant is not entitled to any further IRBs. This argument was rejected by the arbitrator who stated that if the legislators intended such a "radical" change it would clearly state that such a claim for income is barred.
The arbitrator held that in this case Ms. Sun had proven on a balance of probabilities that she suffered, along with other injuries, a psychological impairment as a result of the car accident. As a result, Ms. Sun was entitled to continuing income replacement benefits.
The evidence showed that Ms. Sun was in good health prior to the accident. She did not have a family doctor and her OHIP record showed that she did not have any medical treatment for any reason before the car accident.
An OCF 22 was submitted to Wawanesa by Dr. Perlmutter, a psychologist, to complete a psychological assessment. The purpose of the assessment was to determine the extent to which Ms. Sun was suffering from psychological or emotional difficulties as a direct result of the car accident.
Wawanesa had an insurer´s examination, by way of paper review, completed by Dr. MacNiven. The request for an assessment was denied based on the fact that the family doctor and chiropractor had not commented on psychological issues. The paper review did not comment on the comments by Dr. Perlmutter.
Despite the denial, Ms. Sun completed an assessment with Dr. Perlmutter. In the assessment Dr. Perlmutter concluded that Ms. Sun suffered from anxiety, depressive symptoms and post-traumatic stress disorder. In the treatment plan submitted by Dr. Perlmutter it was noted that Ms. Sun suffered from, among other things, Adjustment Disorder - mixed anxiety and depressive reaction; irritability and anger; Post-traumatic stress disorder.
It is interesting to note that Wawanesa then referred the treatment plan to a DAC. At the DAC Dr. Leonard Goldsmith, psychologist, concluded that the treatment plan was reasonable and necessary. Wawanesa claimed that they had sent the information to the insured´s representative, Wawanesa did indicate in a letter to Ms. Sun´s representative that the DAC determined that the treatment plan was not reasonable and necessary. When the matter was sorted out, Wawanesa later refused to pay for transportation to and from psychological treatment but would pay for public transportation. Later, Wawanesa then claimed that they required another Disability Certificate in order to continue to consider Ms. Sun´s claim for accident benefits. After receiving a Disability Certificate from her family doctor, Wawanesa then sent Ms. Sun to an Insurer´s Examination with Dr. Paul Robinson, psychologist.
Wawanesa argued that Ms. Sun failed to mitigate her psychological injuries by not attending treatment when they offered to pay for public transportation.
The arbitrator, in providing a Special award to Ms. Sun, was of the view that she was thwarted by Wawanesa from the beginning in her desire to get treatment and get her life back together after the car accident.
When assessing the issue of a Special award, the arbitrator noted that instead of trying to help Ms. Sun in her recovery from the car accident in a reasonable manner, Wawanesa seemed to have only placed hurdles in her way. These hurdles included numerous assessments, denials of treatment plans and ignoring a disability certificate. The arbitrator held that "Wawanesa maintained a closed mind in assessing Ms. Sun´s claim. I find that Wawanesa´s behaviour in ignoring cogent, reliable medical evidence in favour of Ms. Sun´s claim to have been unreasonable, in that it was excessive, stubborn, inflexible and unyielding."