Quality of Life Altered and Pre-Existing Conditions Worsened - Insured Entitled to CAT Benefits

January 28, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Serafini and Security National – Insured establishes quality of life altered and pre-existing conditions worsened; Meets CAT threshold for benefits;

Date of Decision: December 19, 2016
Heard Before: Adjudicator Jeffrey Musson

REASONS FOR DECISION

Issues:

Mrs. Caterina Serafini was injured in a car accident on January 14, 2008 in Ontario, while she was driving to work.  There was approximately $2,500.00 in damage done to Mrs. Sarafini’s vehicle.   Both cars were drivable after the collision.  There were no first responders who attended the scene.  Both parties involved in the accident exchanged information and Mrs. Sarafini went to work after the accident and worked a full day but she never returned to that job after the day of the accident.  On January 16, 2008, she phoned the insurance company to report the accident, and applied for statutory accident benefits from Security National. When the parties were unable to resolve their disputes through mediation Mrs. Serafini applied for arbitration at the FSCO.

Following the accident on January 25, 2008, she submitted and OCF-3, and on February 1, 2008 she submitted an OCF-3 listing soft tissue injuries which were confirmed in medical evidence.

The issues in this Hearing are:

1. Are Mrs. Serafini’s injuries catastrophic (“CAT”) as defined under the Schedule?
2. Is Mrs. Serafini entitled to Income Replacement Benefits (“IRBs”) in the amount of $400.00 per week for the period from January 14, 2010 and ongoing?
3. Is Mrs. Serafini entitled to Medical Benefits in the amount of $1,088.76 for physiotherapy, less amounts paid by the extended health provider?
4. Is Mrs. Serafini entitled to Medical Benefits in the amount of $5,131.55 for psychological treatment?
5. Is Mrs. Serafini entitled to interest for the overdue payment of benefits?

Result:

1. Mrs. Serafini’s injuries are CAT as defined under the Schedule.
2. Mrs. Serafini is not entitled to IRBs.
3. Mrs. Serafini is entitled to Medical Benefits in the amount of $1,088.76 for physiotherapy, less amounts paid by the extended health provider.
4. Mrs. Serafini is entitled to Medical Benefits in the amount of $5,131.55 for psychological treatment.
5. Mrs. Serafini is entitled to interest for the overdue payment of benefits for only those Medical Benefits that have been incurred.

BACKGROUND

Mrs. Sarafini is 45 years old, married with a young daughter.  Mrs. Sarafini has been involved in 2 prior car accidents and in one workplace accident. She has received approximately $62,000 in benefits to date.

The Arbitrator noted that the onus is on Mrs. Sarafini to prove her case, and agreed with Security National when it stated that Mrs. Sarafini had no objective injuries and that Mrs. Sarafini’s credibility will play a significant role at this Hearing. The Arbitrators found that Mrs. Sarafini’s testimony withstood intensive scrutiny and was without guile.  Her testimony confirmed the information that she gave to her assessors.  Mrs. Sarafini testified that she had some health issues prior to the accident.  She testified that she was a happy individual in the past and was active. She participated in fitness clsses, travelled with her husband and split household chores 50-50 with him. Following the accident they sold their two level home and bought a bungalow that was easier for her to manage.

 Mrs. Sarafini graduated from McMaster University in 1994 with a B.A. in psychology.  She has previously worked part-time at a grocery store while working her way through university.  She also worked as a child and youth worker at an organization that operated numerous group homes across the Hamilton area.  Mrs. Sarafini testified that she typically would work 40-50 hours per week.  As part of this job, she was responsible for supervising children who were relocated out of their family homes.  She worked there from 1995 until 2005. IN 1999 she began working as an EA for special needs children and eventually took that job on full time.

Mrs. Sarafini was involved in a workplace accident in February 2005 while working at a school.  A student became physically violent with Mrs. Sarafini and Mrs. Sarafini suffered some injuries and was briefly off work with a WSIB claim. She was given modified duties when she returned. Mrs. Sarafini was on maternity leave from February 2006 until September 2007.  She was originally supposed to go back to work in April 2007; however, this was delayed so Mrs. Sarafini could help care for a sick family member.  She did return to work in September 2007 on a part-time basis.  It was only four months later that Mrs. Sarafini was involved in the January 14, 2008 car accident.  Since the accident, there has been virtually no income claimed by Mrs. Sarafini on her personal tax returns up to and including today.

Mrs. Sarafini testified that after the accident, she was sore throughout the day at work and it got worse in the evening.  As her symptoms progressively got worse, she visited the doctor complaining of pain in her shoulders, upper and lower back.  Mrs. Sarafini was sent for x-rays and was prescribed medication and given a doctor’s note to stay home.  Mrs. Sarafini suggested to her family doctor that physiotherapy might help in her recovery.  The doctor agreed that she should try it and she referred Mrs. Sarafini to a physiotherapist.

Mrs. Sarafini testified that she was in constant pain for weeks after the accident and there were times when she wouldn’t get out of bed.  As the pain was not subsiding, Mrs. Sarafini was referred to back specialist in May 2008, who assessed her and concluded that surgery would not help.  The doctor recommended an aqua fit program at the hospital that started in mid-June of 2008 and Mrs. Sarafini had four sessions before the hospital unfortunately closed if. After the program closed, TD Insurance sent an occupational therapist to work on treatment with Mrs. Sarafini in a public pool.  Mrs. Sarafini testified that she tried it, but the public pool wasn’t warm and she wanted the water at a higher temperature so those sessions were ended.

With the aqua fit program closed and Mrs. Sarafini’s pain not subsiding, Mrs. Sarafini asked her family doctor to refer her to a new specialist and she was eventually referred to a chronic pain specialist who concluded that Mrs. Sarafini was a good chronic pain candidate. Unfortunately, none of the treatments recommended helped. She began cortisone and anesthetic injections. She tried a few new jobs but could not work due to the pain. Her position at the school board was finally terminated with 6 months of sick days being paid out.

Mrs. Sarafini testified that since the accident she has a limited daily routine. She is minimally involved in the household cooking, naps and sleeps a lot, relies on her husband to make dinner and to attend most extracurricular activities with their child.  Mrs. Sarafini testified that she has suffered psychologically since the accident and was under the care psychologists from September 2013 up until June of 2014, attending sessions once a week.  She testified that she is dependent on her family as her support system for virtually everything whereas she was completely independent prior to the accident.  Mrs. Sarafini testified that her relationship with her husband is just okay.  She said her relationship with her daughter is not good and her friendships that were once central to her social life are no longer there.

Security National provided surveillance showing Mrs. Sarafini going about her daily life.  The AR bitrator found the evidence was not beneficial to either Security National or Mrs. Sarafini.  The surveillance confirmed some aspects of Mrs. Sarafini’s testimony and, did not show any significant behaviour that varied from what Mrs. Sarafini testified she was doing.

Mrs. Sarafini’s life before the accident when compared to after the accident is significantly restricted.  She concluded her testimony by saying that prior to the accident, she had achieved what she wanted in life and after the accident, she has been living in hell.

On July 21, 2012, current counsel advised TD Insurance that Mrs. Sarafini wanted to claim post-104 IRBs. Mrs. Sarafini confirmed in her testimony that she never submitted an OCF-2 form and can’t remember why she didn’t.  In addition, Mrs. Sarafini also confirmed that she had never filled out a new (2nd election) form for IRBs. In order to support her claim for post-104 IRBs, Mrs. Sarafini was assessed and the report found that Mrs. Sarafini suffers a complete inability to work and therefore qualifies for post-104 IRBs.  The prognosis of Mrs. Sarafini’s impairment is poor and the physician concluded that Mrs. Sarafini will not be able to return to work and will not recover past the 2 year mark. Security National’s assessor, came to the opposite conclusion.  He felt that Mrs. Sarafini was smart, intelligent and has skills such that with the proper treatment, she can go back to work.

All of these points are moot because in Section 32[13] of the Schedule, it states that a re-election of benefits is acceptable but it must be completed within 30 days of the initial election.  While a breach of Section 32 would not disentitle an individual to a benefit if the person had a reasonable explanation for the breach, if there was a significant delay involved, then that was a consideration. As Mrs. Sarafini did not provide any explanation for the lengthy delay, the Arbitrator determined that no IRBs would be payable.

The Arbitrator reviewed the testimony of Mrs. Serafini’s husband, and that of her long-time family doctor. He also reviewed the evidence submitted by Security National, and the law. Based on evidence submitted that Arbitrator found Mrs. Sarafini proved beyond a doubt that she entitled to compensation for the treatment plans for physiotherapy, and psychological treatments submitted.

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 at 1-519-742-7774.

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.