Applicant's Evidence for CAT Designation Is Unreliable - Garofalo and Economical

July 02, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant's Evidence for CAT Designation Is Unreliable - Garofalo and Economical

IRBs- testimony and evidence are found unreliable; application for CAT denied

Date of Decision: June 20, 2017
Heard Before: Adjudicator Marshall Schnapp

Mr. Joseph Garofalo was injured in a car accident August 18, 2008. He applied for arbitration at the FSCO after his claim failed with Economical.

Issues:

1. Is Mr. Garofalo entitled to receive a weekly Income Replacement Benefit (“IRB”) in the amount of $400.00 from July 4, 2011 to date and on-going?
2. Is Mr. Garofalo entitled to receive a Medical Benefit in the amount of $623.00 for chiropractic treatment and a total body assessment as per the OCF-18, dated June 9, 2014?
3. Did Mr. Garofalo sustain a “Catastrophic Impairment” as a result of the accident within the meaning of the Schedule?
4. Is Mr. Garofalo entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Garofalo is not entitled to IRBs beyond July 4, 2011 as a result of this accident.
2. Mr. Garofalo is not entitled to receive a Medical Benefit as cited in the June 9, 2014 OCF-18.
3. Mr. Garofalo did not sustain a Catastrophic Impairment as a result of this accident.
4. Mr. Garofalo is not entitled to interest for any overdue payments of benefits
5. Mr. Garofalo is liable to pay Economical’s reasonable expenses in respect to this Arbitration.

Mr. Garofalo was 42 years old with a grade 11 education when he had the accident. His employment history is all jobs that require manual labour with some level of customer service.  Mr. Garofalo has had a long and unfortunate medical history beginning with a May 29, 1994 workplace accident. In 2002, Mr. Garofalo applied for and received disability benefits from the Ontario Disability Support Program.  Mr. Garofalo had two previous car accidents, both in February of 2007, prior to this car accident.

Despite these hurdles, Mr. Garofalo, much to his credit, began working full-time once again as a construction labourer on June 11, 2008 until November 4, 2008. Since November 4, 2008, Mr. Garofalo has not been gainfully employed, and had received IRBs up to July 4, 2011 when the benefit was terminated by Economical.  Mr. Garofalo was involved in two more car accidents since August 2008, namely, December 10, 2010 and February 11, 2013.

Mr. Garofalo did not appear at the first day of the Hearing and his counsel stated that he had lost contact with Mr. Garofalo a few days prior. The Arbitration was adjourned until the following morning. When Mr. Garofalo’s counsel presented two documents: one from St. Joseph’s Hamilton Hospital and the second from Dr. G, the psychologist. Notes showed that Mr. Garofalo was suffering from panic attacks and also had suicidal ideations, and staff had taken oversight of Mr. Garofalo on September 20, 2016.

Economical’s counsel argued that if a short adjournment was granted, Economical would move to dismiss the Application for Arbitration with prejudice should Mr. Garofalo not attend or participate again causing further delays. Insurer’s counsel requested that should an adjournment be granted, it must have the condition which necessitates the case must move forward on its merits once reconvened. The Arbitrator granted an adjournment to the first date available in the parties’ calendars, with the condition that I would hear Economical’s Motion to dismiss should Mr. Garofalo not be available again.

The Arbitration reconvened as scheduled on February 2, 2017.

The parties have agreed that it is the burden of Mr. Garofalo to show that because of the August 18, 2008 car accident he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. All the reports found or supported the concept that Mr. Garofalo did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training and experience.

The Arbitrator determined Mr. Garofalo did not satisfy his burden and show he was entitled to the IRB in that he was suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the August 18, 2008 car accident. Therefore, for these reasons, Mr. Garofalo is not entitled to IRBs beyond July 4, 2011 as a result of this car accident.

The parties agreed that it is the burden of Mr. Garofalo to show that the Medical Benefit he is seeking is a reasonable and necessary expense and that it is linked directly to the August 18, 2008 car accident. There was no evidence presented on this topic from Mr. Garofalo or the facility that submitted the OCF-18. Closing submissions for Mr. Garofalo did not address this issue.

Mr. Garofalo is seeking a catastrophic determination because of the August 18, 2008 car accident. Mr. Garofalo asserts that he is 57 percent Whole Person Impaired (“WPI”), which exceeds the 55 percent WPI requirement for a person to be determined to be catastrophically impaired within the meaning of the Schedule. Mr. Garofalo also argues that he can be found to have a marked impairment, and by virtue of a marked impairment, could be found catastrophically impaired within the meaning of the Schedule. Both Mr. Garofalo and Economical produced assessments of Mr. Garofalo for the catastrophic determination with findings.

The Arbitrator reviewed the assessments and medical evidence and found that the credibility of Mr. Garofalo and his assessments are an issue. Under these circumstances, and based on the totality of the evidence the Arbitrator found that Mr. Garofalo did not sustain a Catastrophic Impairment as a result of the August 18, 2008 car accident.

As a result of the above decisions, Mr. Garofalo is not entitled to interest for any overdue payments of benefits; Economical is not liable to pay Mr. Garofalo’s expenses in respect to this Arbitration; and Mr. Garofalo is liable to pay Economical’s reasonable expenses in respect to this Arbitration.

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.