Almedom and Wawanesa - Applicant fails to provide medical evidence to support IRB claim

July 06, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Almedom and Wawanesa

Decision Date: 2018-04-30
Heard Before: Adjudicator Marcel Mongeon

INCOME REPLACEMENT BENEFITS: applicant fails to provide medical evidence to support entitlement to IRB claim; applicant fails to provide invoice for outstanding treatment amounts claimed

Ms. Rista Almedom  was injured in a car accident on August 28, 2015. She was going home after visiting the employment agency’s office and crossing a driveway when a car hit her. She fell to the ground. She recalls her right hand was bleeding and the left side of her face was swollen. She testified to not remembering anything until she was in the ambulance. She was taken to Hospital. A doctor examined her. She was told she had bruising. She was given Tylenol for pain and discharged home with advice to see her family doctor. She sought accident benefits payable under the Schedule from Wawnesa but when the parties were unable to resolve their disputes through mediation Ms. Almedom applied to FSCO for arbitration.

Issues:

1. Is Ms. Almedom entitled to receive an IRB, and, if so, for what periods of time and in what amounts?
2. Is Ms. Almedom entitled to receive a medical benefit for $1,299.99 for a treatment plan submitted December 8, 2015?
3. Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Almedom?

Result:

1. Ms. Almedom is not entitled to receive an income replacement benefit.
2. Ms. Almedom is not entitled to any further payment of this medical benefit.
3. Ms. Almedom is not entitled to the payment of a special award.

Ms. Almedom came to Canada in 2012 from Eritrea as a political refugee. She moved to Toronto in August 2014 so that she could get married to her husband in September 2014. She became a Canadian citizen in October 2016.

Ms. Almedom obtained a grade 12 education in accordance with Canadian standards and completed one semester of three courses of pre-nursing studies at the University of Manitoba. She also had experience working in a Winnipeg youth centre cooking, cleaning and doing laundry in a youth group home between February 2013 and July 2014. She continued nursing education in Tortonto at George Brown College in September 2014. In testimony, Ms. Almedom was repeating courses in September 2015 because she did not have a high enough grade in the earlier year. However, no transcripts were presented to substantiate this.

Ms. Almedom found employment in August 2015 doing “production line help” with a description of “sorting car parts.” Ms. Almedom testified that she had to lift heavy parts of 8 to 10 kg in weight and put them on some type of testing machine. She also testified to having to sometimes lift the parts above her shoulder level. Based on the results of the testing, she might also have to place parts on another table. She earned minimum wage.

The Police Report of the accident notes the time the accident was reported was 11:51 a.m. on August 28, 2015. The Insurer’s property damage file shows the accident being reported as “Insured hit pedestrian while making left turn.” This file also suggests minor vehicle damages.

The Ambulance Report contains a description of the accident “Patient made contact with white sedan while crossing street.” Other notations include “patient complaining of pain to left side of face” and “small abrasion in left knee. Not actively bleeding. Patient complaining of pain in left shoulder also. No obvious trauma or injuries there.” No loss of consciousness. Ambulatory at scene. Glasgow Coma Scale 15.” X-rays were performed did not show any abnormalities. The final diagnosis is shown as “soft tissues” with follow up suggested to the family physician and Tylenol for pain. Ms. Almedom was discharged at 3:56 p.m.

Ms. Almedom did not return to her pre-accident employment following the accident. She did not seek employment anywhere else. She did go back to school but used transit to attend. School was a challenge for her, and she dropped out of the nursing program.

Since the subject accident, Ms. Almedom has a number of ongoing complaints including back pain and headaches. She believes that she is unsuited for any employment as a result of her inability to do any strenuous physical tasks. She has no office experience. Ms. Almedom can use a computer having used an online course management system for her nursing course and can communicate by email. Ms. Almedom had some pre-accident medical conditions.

A Clinical Psychology, Neuropsychology, Vocational Assessment and Vocational Rehabilitation expert testified to being familiar with Ms. Almedom’s case and acknowledged that he was the clinical coordinator for a multi-disciplinary assessment conducted to determine Ms. Almedom’s entitlement to post-104 week IRBs. Ms. Almedom was subjected to a two-day situational assessment which was designed to mimic the workplace. He acknowledged never having personally met Ms. Almedom. The cross-examination also elicited that the name of the psychometrist who conducted tests of Ms. Almedom was not reported and that any part of the report which involved observations could be observations of the unnamed psychometrist. There was also an acknowledgment that as part of the psychological testing, an administrative person who is not listed in the report was responsible for supervising Ms. Almedom’s testing. Observations noted might also be those of the unnamed administrative person.  Dr. Salmon also acknowledged that there was no contact made with the employer. In addition, there was no observation of the work environment that Ms. Almedom had.

Psychometric and cognitive assessment was completed August 24, 2017. Ms. Almedom was unable to conduct 50% of the testing which she explained to me meant that Ms. Almedom was able to make it about half way through the tests.

Ms. Almedom was removed from the MIG in March 2016 based on the finding that some psychological treatment proposed for Ms. Almedom was reasonable and necessary. The Insurer  acknowledged that when Ms. Almedom was paid an IRB, the weekly amount was $194.69 and that there was never a suggestion that this amount was somehow incorrect. Wawanesa testified that the IRB was terminated as of February 1, 2016 based on a report from North York Rehabilitation Centre dated April 5, 2016.

The Arbitrator reviewed the evidence and the law in the case. The key issue was what impairments did Ms. Almedom suffer due to the accident. Ms. Almedom returned to school after the accident to a demanding program, and did well in the first semester after the accident with A+ average.

Ms. Almedom’s representative has attempted to discount her achievement by pointing to her eventual need for accommodations and then withdrawal from the program as proof that the accident affected her, however, there is no evidence as to the College’s Accommodations Policy or under what circumstances Ms. Almedom was provided accommodations. Ms. Almedom’s medical evidence msut e considered independently in determining her entitlement to accident benefits.

The facts presented do not support either a neurological or left shoulder problem sufficient to be an employment disability. In terms of a psychological impairment, there is an acknowledgment even in the Insurer’s medical evidence that Ms. Almedom required and was provided psychological treatment for some minor psychological matters.

On the basis of the evidence the Arbitrator concluded Ms. Almedom has not demonstrated any physical or psychological impairments caused by the subject accident. Without any impairments, Ms. Almedom does not qualify for IRBs.

Medical Benefit Sought

Ms. Almedom was removed from the MIG at the end of March 2016 as a result of the approval of psychological treatment. The Insurer provided evidence of the payment of two invoices for treatment. Ms. Almedom submits that she continues to be entitled to payment of the $57.15, however there is no proof of an unpaid invoice. The burden of proof is on Ms. Almedom. On this basis she is not entitled to payment of any outstanding amounts.

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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.