Applicant's Testimony Evasive and Lacking Credibility - Applicant and Allstate LAT 16-003415 2018 CanLII 8071

March 28, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Allstate LAT 16-003415 2018 CanLII 8071

Date of Decision: January 5, 2018
Heard Before: Adjudicator Cezary Paluch

CAT IMPAIRMENT: Applicant does not have marked impairment due to the accident; applicant's testimony evasive; Adjudicator finds applicant to lack credibility

AR was injured in a car accident on October 24, 2013. She applied for and received benefits under the SABs. On May 16, 2016, AR applied to Allstate for a determination that her accident injuries resulted in CAT impairment which Allstate denied. AR applied to the LAT for Arbitration.

AR was born in El Salvador and immigrated to Canada in 1988. Before the accident she was healthy and relatively pain-free.

October 24, 2013 AR was side-swiped at an intersection by a vehicle running a red light. The air bags deployed. The main damage occurred to the front left side of the car near the wheel with no obvious compartmental damage. AR was 47 years of age, married with two children, working as a PSW.

AR was taken to the hospital by ambulance and discharged the same day. Investigations revealed multiple soft tissue injuries, and pain to her back and neck. Current complaints are pain in both shoulders, neck and back pain, headaches (that occur on a variable and unpredictable basis), and symptoms of anxiety. AR submits these symptoms have significantly impacted her ability to function in her daily life.

Issue:

1. Did AR sustain a catastrophic impairment as defined in the Schedule as a result of the accident?

Result:

1. AR is not catastrophically impaired.

The Adjudicator noted that the issue in this hearing is whether AR suffered a catastrophic impairment that results in a Class 4 impairment (marked impairment) or Class 5 impairment (extreme impairment) due to mental or behavior disorder.

The Adjudicator reviewed the definitions and the law in the case, noting that the Ontario Court of Appeal in Liu confirmed that the test of catastrophic impairment is a legal test and not a medical test. The Court stated:

“Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation, must be discarded when considering whether a claimant meets the statutory test. The statutory scheme creates a bright line rule which is relatively easy to apply.”

The burden of proof rests with to prove on the balance of probabilities that, as a result of the accident, she sustained a “catastrophic impairment”. The severity of AR’s mental and behavioural impairments has been assessed by medical specialists for both sides.  None of the experts concluded that AR suffered a Class 5 impairment.

AR’s counsel submitted that she meets the threshold for a catastrophic impairment because she suffered a psychological impairment as a result of the accident that results in a marked impairment (Level 4) in every single domain, and that causation is not an issue. She relied on Allstate’s own expert’s opinion that concluded that the current conditions are materially related to the accident.

Allstate submitted that the issue is not whether AR has a mental/behavioral diagnosis, but rather whether her mental or behavior disorder rises to the level of “catastrophic”, submitting that there are credibility concerns on the part of AR because she had no objective injuries as a result of the accident and her psychological issues must be examined cautiously through a critical objective lens.

The Adjudicator reviewed the extensive medical evidence and the assessments. The Adjudicator noted that on the whole he was satisfied on a balance of probabilities that AR’s current condition is materially related to the accident and whatever injuries or impairments AR has sustained or endured were caused by the motor vehicle accident. However, based on the medical assessments AR did not suffer a marked impairment in any of the four domains as a result of the accident.

Overall, the adjudicator found that there were significant discrepancies in AR’s testimony. Her testimony was at times evasive, indirect and inconsistent with no satisfactory explanation provided such that raised concerns regarding AR’s credibility.

The Adjudicator concluded that on the balance of probabilities the severity of AR’s level of impairment with respect to activities of daily living, social functioning, concentration and adaption as set out in the Guides does not constitute a catastrophic impairment pursuant to section 3(2)(f) of the Schedule.

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