Applicant's Credibility Questionable - IRBs denied - Applicant and Unifund LAT 16-003709

April 05, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Unifund LAT 16-003709 CanLII 2302

Date of Decision: January 10, 2018
Heard Before: Adjudicator Catherine Bickley

IRBs and ACBs: applicant is not credible; evidence of injuries not persuasive; inconsistent testimony given by applicant to assessors and to the Tribunal; IRBs that were over payed must be repaid to insurer; ACBs were not incurred pursuant to the schedule and are denied

IM was in a car accident on June 10, 2015, and sought benefits pursuant to the SABs but when Unifund denied IRBs and ACBs, IM applied for arbitration at the LAT.

Issues:

1. Is IM entitled to IRBs of $389.96 per week from December 10, 2015 to June 9, 2017?
2. Is Unifund entitled to repayment of $2,984.59 (plus interest) in IRBs?
3. Is IM entitled to attendant care benefits of $921.83 per month from November 9, 2015 to date and ongoing?
4. Is either party entitled to costs pursuant to Rule 19?

RESULT

1. IM is not entitled to IRBs from December 10, 2015 to June 9, 2017.
2. Unifund is entitled to repayment of $2,984.59 (plus interest) in IRBs.
3. IM is not entitled to attendant care benefits from November 9, 2015 to date and ongoing.
4. Neither party is entitled to costs pursuant to Rule 19.

IM submits that she is suffering from chronic left arm and shoulder pain, chronic neck pain, chronic lower back pain and chronic knee pain. She states that she has also experienced numbness and tingling in her arm and hand.

The Adjudicator found that IM has not established that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as dental assistant as a result of the accident. IM’s lack of credibility on key issues renders unpersuasive both her testimony and medical reports which rely on her description of pain and other symptoms. The most significant findings on objective medical imaging are not caused by the accident. IM has not provided persuasive evidence that any impairment caused by the accident results in a substantial inability to perform the essential tasks of her pre-accident employment.

Unifund is entitled to repayment of $2,984.59 (plus interest) in IRBs for the period when IM was working in September, October and November 2015. Repayment was not identified as an issue in the February 7, 2017 case conference order. Rather, Unifund raised the issue at the start of the hearing however, the Adjudicator ruled that it could be added as an issue. IM’s representative acknowledged on the record that there had been an overpayment of $2,984.59 and stated that the amount would be either repaid or offset against any award of IRBs,

The Adjudicator found that IM is not entitled to ACBs as none were incurred as that term is defined in the Schedule.

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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.