July 31, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Rajaste and Wawanesa
Date of Decision: June 26, 2017
Heard Before; Adjudicator Jeffrey Musson
IRBs: Does applicant have credibility? Double dipping IRBs and disability CPP; EI and CPP and IRB forms contradict one another; medical forms contradict other forms.
Ms. (Rita) Anna Rajaste was injured in a car accident on October 11, 2012 and sought accident benefits from Wawanesa but when the parties were unable to resolve their disputes through mediation Ms. Rajaste applied for arbitration at the FSCO.
The issues in this Arbitration Hearing are:
- Is Ms. Rajaste entitled to IRBs in the amount of $263.47 per week from April 29, 2013 to date and on-going?
- Is Ms. Rajaste entitled to a Medical Benefit in the amount of $1,965.20, dated January 1, 2013?
- Is Ms. Rajaste entitled to a Special Award?
- Is Ms. Rajaste entitled to interest for the overdue payment of benefits?
- Ms. Rajaste is not entitled to IRBs in the amount of $263.47 per week from April 29, 2013 to date and on-going.
- Ms. Rajaste is not entitled to a Medical Benefit.
- Ms. Rajaste is not entitled to a Special Award.
- Ms. Rajaste is not entitled to interest for the overdue payment of benefits
Ms. Rajaste is married and has two children. She was a passenger in the front seat of the car that her son was driving, when it was rear-ended at a red light. The total property damage to the vehicle was approximately $800.00. Ms. Rajaste sustained injuries to her neck and back. Ms. Rajaste was not working at the time of the car accident due to a prior workplace injury which took place in June 2012. After the workplace injury, Ms. Rajaste took time off work and began receiving Employment Insurance Benefits (“EI”). She collected EI from August 5, 2012 until August 3, 2013. Ms. Rajaste applied for Canada Pension Plan Disability Benefits which was approved and she has not returned to work since.
Ms. Rajaste testified that this car accident has had a dramatic effect on her life. She testified she went to the emergency room after the accident, but her OHIP summary stated that she attended on November 5, 2012, not October 11, 2012, the date of the car accident. She could not explain the discrepancy, nor could she explain why she didn’t go for medical treatment until three weeks post-accident. She was asked as part of her testimony to explain why she told several treating physicians that she went for medical treatment right after the car accident when the OHIP records showed otherwise. Again, she failed to provide an answer as to how there could be conflicting evidence.
Ms. Rajaste claims the car accident of October 11, 2012 exacerbated her pre-existing workplace injury, and that she sustained shoulder and back injuries. She testified that she never had back pain issues prior to the car accident of October 11, 2012. However, when asked under cross-examination why there was an entry in her medical notes and records on August 1, 2012 showing that she had an upper and lower back strain, Ms. Rajaste said she did not know why. She was also asked if there was a reason why she would doubt the authenticity of the Clinical Notes and Records (“CNRs”), and she said no there was no reason to disagree with the CNRs.
Ms. Rajaste stated that she never returned to work after the car accident, but at multiple other points in her testimony, she said that she did work after the car accident. Her OCF-2 and ROE did not concur with last days worked.
Ms. Rajaste confirmed that she was involved in a couple of prior accidents, one being a car accident in July of 2009 and the workplace injury on June 22, 2012. When asked about the prior car accident, Ms. Rajaste confirmed that the car accident occurred on July 10, 2009, over three years prior to the subject accident. She testified that she suffered lower back, shoulder and neck injuries from it and subsequently claimed accident benefits. Ms. Rajaste also testified that she took one year off of work because of that car accident.
Ms. Rajaste was also asked about the workplace injury. She testified that she injured two fingers throwing out diapers at work on June 22, 2012. Ms. Rajaste was off work and received EI following this injury/incident. Around the same time, in addition to the workplace injury, Ms. Rajaste testified that she also had some elective outpatient surgery completed on her backside.
Ms. Rajaste was asked about an EI form she signed on December 12, 2012, where she stated that she was fired from her job. She signed on page 4 of this form that she was ready to work. When asked under cross-examination to explain this discrepancy between claiming IRBs and stating on an EI form that she was capable of working, she wasn’t able to do so. She confirmed that she was receiving regular EI from December 30, 2012 until August 3, 2013. At the same time, the evidence showed that Ms. Rajaste was “double-dipping” and receiving IRBs from December 30, 2012 until its termination date of April 29, 2013. When asked to explain this situation, Ms. Rajaste could not explain why she was not being honest and forthright.
Once her EI ended in August 2013, she applied for CPP. In Section 15 on the form, she stated that she had attempted to return to work. When asked to explain this contradiction, she testified that she didn’t know why she said that. Ultimately, she was approved for CPP disability, but she testified that if given the opportunity, she would love to go back to work because she likes taking care of children.
The Arbitrator reviewed the testimony of Ms. Rajste’s husband, and the medical evidence, and concluded that Ms. Rajaste’s testimony to be contradictory and lacking credibility. As a result little weight was put on her testimony and significantly more weight on the documented medical and work-related evidence. Ms. Rajaste is claiming both pre- and post-104 IRBs, but there was no documented evidence that she attempted to return to work after the car accident. The onus is on Ms. Rajaste to prove that she suffered a substantial and/or a complete inability to work as a result of the accident on October 11, 2012. The Arbitrator noted Ms. Rajaste didn’t have any medical experts testify that her injuries were directly caused by the car accident.
Contradictions in Ms. Rajaste’s testimony along with her own medical evidence proved the Insurer’s case more than her own. From a medical perspective, there was no evidence conclusively tying Ms. Rajaste’s injuries from the car accident to her reported complaints, thereby preventing her from working. In fact, the evidence overwhelmingly shows Ms. Rajaste could work. Ms. Rajaste failed to submit evidence to meet this threshold.