Applicant fails to show that she is prevented from engaging in pre-accident activities

October 10, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Baradaran, F. and State Farm

Date of Decision: August 30, 2017
Heard Before: Adjudicator Rosemary Muzzi

NEBs: Surveillance shows activity around the home; applicant fails to show activity after accident is substantially and continually different than before; claim denied

On May 30, 2012 Fariba Baradaran was injured while she ran to help her 11-year-old daughter who had been hit by a car. When State Farm denied some of the benefits Mrs. Baradaran applied for arbitration at FSCO.

Issues in this hearing are:

1. Is Mrs. Baradaran entitled to a non-earner benefit(NEB)?
2. Is Mrs. Baradaran entitled to $2456.40 for a physiotherapy?
3. Is Mrs. Baradaran entitled to specified prescription medication and travel?
4. Is Mrs. Baradaran entitled to interest for the overdue payment of benefits?
5. Are the parties entitled to their expenses?

Result:

1. Mrs. Baradaran is not entitled to a NEB.
2. Mrs. Baradaran is entitled to $2456.40 for the physiotherapy treatment.
3. Mrs. Baradaran is not entitled to prescription medication and travel expenses.
4. Mrs. Baradaran is entitled to interest.
5. Neither party is entitled to its expenses.

Mrs. Baradaran is a homemaker and mother. The parties agreed that she was hurt as a result of the car accident. She claims she qualifies for NEB.

The Arbitrator reviewed the law concerning NEB. In order to receive NEB Mrs. Baradaran must demonstrate that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. She must demonstrate that she was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

In Mrs. Baradaran’s case, physical pain is a primary complaint in addition to complaints of a psychological nature. 

The Arbitrator reviewed the surveillance evidence showing Mrs. Baradaran working around the home, the medical evidence, and Mrs. Baradaran’s evidence, and concluded that it  is insufficient to show that the activities she normally engaged in before the accident were so limited in the 104 weeks after the accident that she was continuously prevented from engaging in them. Mrs. Baradaran was able to engage in many of her usual activities though to a lesser degree and with pain, and the pain did not practically prevent her from engaging in most of those activities. Therefore, there is insufficient evidence on balance to show that Mrs. Baradaran suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. On this basis Mrs. Baradaran is not entitled to a non-earner benefit as a result of the accident.

The Arbitrator then reviewed the physiotherapy plans.  Mrs. Baradan testified that she continues to need treatment. She had attended three times a week for some time, but could not recall the last time she went for treatment. The Arbitrator also reviewed the medical evidence showing she continues to suffer from neck and back and leg pain due to the car accident. Her physician reports that she continues to require physical therapy, such as physiotherapy and massage therapy as well as chiropractic adjustments. She has been encouraged to stay active as much as she can.

The Commission has found in the past that pain relief is a valid basis for finding that treatment is reasonable and necessary as contemplated by the Schedule. Given that Mrs. Baradaran’s pain medications provide only temporary relief and that her doctor has recommended a more active lifestyle to improve her symptoms, the Arbitrator found the treatment plan proposed is reasonable and necessary.

The Arbitrator then reviewed the medication and travel expenses. The preponderance of the evidence in this regard shows that the prescription medication expenses claimed by Mrs. Baradaran are covered and were reimbursed through another plan. Based on this evidence, the Arbitrator was satisfied that the prescription medication expenses claimed were never paid out-of-pocket by Mrs. Baradaran. The Arbitrator heard no persuasive evidence in relation to the travel expenses claimed about the reasonableness and necessity of these expenses and their coverage under the Schedule.

On that basis Mrs. Baradaran is not entitled to the medical expenses for the prescription medication and travel expenses claimed.

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.