Applicant Fails to Show He Tried to Return to Work - Palmer and RBC

March 17, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Palmer and RBC General

Date of Decision: February 1, 2018
Heard Before: Adjudicator Anne Morris

IRBs and MIG: applicant fails to show injuries are outside MIG; applicant has credibility issues regarding symptom magnification; applicant fails to show he attempted to return to work; medical assessments conclude his injuries fall within MIG

Mr. Clifton Palmer was injured in a car accident on March 21, 2015. He was a shuttle bus driver for a car dealership when his vehicle was T-boned in a three-car collision on March 21, 2015.  He stopped work as a result of the injuries he sustained in the accident and has not returned to work to date. 

RBC paid IRBs at the rate of $396.41 per week until August 28, 2015, when payments were stopped following insurer examinations.  The quantum of IRBs is not in dispute but Mr. Palmer claims IRBs to the 104-week mark post-accident on the basis that he continued to suffer a substantial inability to perform the essential tasks of his employment as a result of the injuries suffered in the accident. When Mr. Palmer and RBC could not agree he applied to FSCO for arbitration.

Issues:

1. Is Mr. Palmer entitled to receive a weekly IRBs of $396.41 from March 28, 2015 to 104 weeks after the accident, less amounts paid by RBC?
2. Is Mr. Palmer entitled to receive a medical benefit for services as follows:
   1. $210.91, the outstanding amount remaining, pursuant to a treatment and assessment plan dated June 10, 2015 in the amount of $1,310.91;
   2. $1920.00 pursuant to an assessment and treatment plan dated July 7, 2015;
   3. $200.00 for a disability certificate dated April 13, 2015?
3. Did Mr. Palmer sustain injuries as a result of the accident which are minor injuries within the meaning of the MIG and Schedule?

Result:

1. Mr. Palmer is not entitled to receive a weekly IRBs of $396.41 from March 28, 2015 to 104 weeks after the accident, less amounts paid by RBC.
2. Mr. Palmer is not entitled to receive a medical benefit for services as follows:
   1. $210.91, the outstanding amount remaining, pursuant to a treatment and assessment plan dated June 10, 2015 in the amount of $1,310.91;
   2. $1920.00 pursuant to an assessment and treatment plan dated July 7, 2015.
3. Mr. Palmer is entitled to receive $200.00 for a disability certificate dated April 13, 2015 upon receipt of an invoice.
4. Mr. Palmer sustained injuries as a result of the accident which are minor injuries within the meaning of the Minor Injury Guideline.

Mr. Palmer was 63 years old.  Mr. Palmer underwent physical therapy for his injuries.  RBC paid for treatment to the limit of $3,500.00 imposed by section 18 of the Schedule for injuries which fall within MIG.  Mr. Palmer submits that he suffers from chronic pain and that this condition falls outside of the MIG.

The Adjudicator reviewed the Medical evidence. Mr. Palmer was diagnosed with myofascial and ligamentous injury to the lumbar and cervical spine as well as soft tissue contusion to the left shoulder and cervicogenic headaches. Theses injuries fall within the definition of minor injury described in the Schedule. Mr. Palmer was also diagnosed chronic pain syndrome.  The Adjudicator noted that pain cannot be measured, and credibility is an important factor in determining whether an applicant suffers from chronic pain.  It is up to Mr. Palmer to show that he more likely than not suffers from chronic pain as a result of injuries which arose from the accident. The Adjudicator had concerns of symptom magnification as raised in some medical assessments.

On the whole the Adjudicator determined that the onus is on Mr. Palmer to show that his injuries arising from the accident fall outside the MIG.  He has not discharged that onus.

RBC stopped IRBs based on the multi-disciplinary IE. It concluded that Mr. Palmer did not suffer a substantial inability to perform the tasks of his employment.  Mr. Palmer’s submission that he was unable to return to work would have been more credible had he tried to do so.  He did not.  On the basis of the evidence the Adjudicator determined that Mr. Palmer has not shown on a balance of probabilities that he suffered a substantial inability to perform the tasks of his employment during the time period in question.

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.