CAT benefits denied on basis of applicant lacking credibility - McCready and State Farm

May 18, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

McCready and State Farm

Catastrophic Injury: CAT benefits; burden of proof not met by applicant; applicant misleading on EI application; applicant not truthful; social media evidence used against applicant; Arbitrator found Ms. McCready’s testimony to be contradictory and lacking credibility

Date of Decision Date: May 1, 2017
Heard Before: Adjudicator Jeffrey Musson

Issues:

Ms. McCready was injured in a car accident on March 26, 2011 and sought accident benefits from State Farm, but when the parties were unable to resolve their disputes through mediation Ms. McCready, applied for arbitration at the FSCO.

The issues in this Arbitration Hearing are:

1. Are Ms. McCready’s injuries considered to be Catastrophic (“CAT”) in nature?
2. Is Ms. McCready entitled to Attendant Care Benefits?
3. Is Ms. McCready entitled to various Medical Benefits?
4. Is Ms. McCready entitled to Cost of Assessments?
5. Is Ms. McCready entitled to a Special Award?
6. Is Ms. McCready entitled to interest for the overdue payment of benefits?

Result:

1. Ms. McCready’s injuries are not considered to be CAT in nature.
2. Ms. McCready is not entitled to Attendant Care Benefits.
3. Ms. McCready is not entitled to Medical Benefits.
4. Ms. McCready is not entitled to Cost of Assessments.
5. Ms. McCready is not entitled to a Special Award.
6. Ms. McCready is not entitled to interest for the overdue payment of benefits.

Ms. McCready was in her car when it was overturned as a result of a collision, and the Jaws of Life were required to extricate her from the vehicle.  Ms. McCready was transported to the hospital by ambulance and after a thorough examination, including x-rays, she was discharged later that same day.  During the hospital exam and afterwards, Ms. McCready said she experienced pain in her neck, shoulders and back.  She was instructed to schedule a follow-up visit with her family doctor, Dr. K., who she saw the following day. She got a referral to a physiotherapist and was prescribed medication. Ms. McCready returned to work 5 days after the accident.   

2 years and 9 months later, on December 22, 2013, Ms. McCready was in the shower at her home when she doubled over in pain.  Her back had seized up when she bent over and was unable to move without assistance.  Ms. McCready scheduled an emergency appointment with her family doctor and sought treatment for her injuries.   In an Affidavit, signed June 27, 2016, Ms. McCready stated that her life changed “definitively” during the December 2013 holidays.  She now suffers from debilitating back, neck and shoulder pain. On July 20, 2015 Ms. McCready submitted an OCF-19 - Determination of Catastrophic Impairment Form claiming entitlement from her car accident 4 years and 4 months prior.  Ms. McCready asserts she has a WPI of 41%-53%. The AMA Guides allow that a score of 53% may be rounded to 55% (the nearest whole percent ending in 0 or 5), thereby establishing that her injuries from the car accident were CAT in nature.  Prior case law has also endorsed that WPI scores may be rounded up to the nearest whole percent ending in 0 or 5.

Ms. McCready testified that this car accident has affected her personal relationships with her daughter and fiancé.  Ms. McCready suffered from some unremarkable pre-existing medical conditions prior to the car accident.  Ms. McCready testified that she did not suffer any fractures from the car accident but had bruising and soft tissue injuries.  Ms. McCready confirmed that immediately following the car accident, she experienced pain on the left side of her body including her left arm and hip.  She also testified that she has ongoing injuries which now include severe left shoulder, neck and left hip pain.

At the time of the car accident, Ms. McCready worked as a Dietary Aid, preparing food and cleaning up after meals for residents at a long-term care facility.  Ms. McCready returned to her job days after the car accident as she needed the money.  Ms. McCready decided to return to school to upgrade her employment to a more physically demanding job as a Personal Support Worker in 2012.

Dr. K, filled out the mandatory medical forms for her to enroll in the college-level PSW program indicating Ms. McCready’s ability to handle the physical aspects of being a PSW.  Ms. McCready stated that she had lied and said whatever she could to get into the PSW program.  Ms. McCready graduated from the PSW program with honours in May 2013.

She testified that a PSW was a more physically demanding career than a Dietary Aid.  She worked part time initially and then full time from July 2013 until December 2013.  Her last day of work was December 22, 2013.  She testified that she has not returned to work since.

Since the shower incident Ms. McCready testified she leads a sedentary lifestyle, no longer works and instead sleeps all day.  On good days, she will take the dog for a 15-minute walk.  Occasionally, she will drive her daughter to her various extracurricular activities, such as swimming and music lessons.

State Farm entered into evidence documents that Ms. McCready submitted after the incident in the shower in December 2013.  In these documents, Ms. McCready never mentioned the car accident.  She only referenced the incident in the shower.  Ms. McCready confirmed that she was the person who filled out these documents, which included her Employment Insurance Benefits Application and her chiropractic intake questionnaire.  She received EI Benefits from December 2013 until April 2014 and then began receiving welfare benefits.  To receive EI Benefits, Ms. McCready had to disclose if she had been involved in a car accident.  When asked on the EI Benefits questionnaire if she was applying for EI Benefits because of a car accident, Ms. McCready denied it. When State Farm’s Counsel asked Ms. McCready under cross-examination if she misled Service Canada with her EI Benefits Application, or was she in fact fully recovered from the car accident, she said yes, she misled Service Canada because she was still injured from the car accident.

While still under cross-examination, State Farm asked Ms. McCready if she went for treatment at Stevenson Chiropractic on December 30, 2013.  Ms. McCready stated that she in fact did attend the clinic on December 20, 2013 for treatment and because it was her first visit, she had to fill out an intake form.  State Farm entered into evidence the form that Ms. McCready filled out where she stated that she required treatment for middle and upper back issues.  On the questionnaire, Ms. McCready answered that it was “yesterday” that her back-pain issues appeared.  When asked by State Farm if this was the truth, she testified that no it was not the truth and it was in fact another lie she told.

State Farm entered into evidence Ms. McCready’s social media accounts showing her out and about doing various activities which exceeded the physical and psychological limitations that Ms. McCready testified that she suffered from as a result of the car accident.  When Ms. McCready was asked to explain this, she said she couldn’t. State Farm also entered surveillance of Ms. McCready, which was taken on numerous occasions, showing Ms. McCready at various locations going about her daily routine with little difficulty.

Overall, the Arbitrator found Ms. McCready’s testimony to be contradictory and lacking credibility. Upon reviewing the medical evidence and the law, the Arbitrator noted that when comparing the assessments of the parties, there were vast areas of disagreement. The Arbitrator noted the onus is on Ms. McCready to prove her case.  Ms. McCready failed to submit sufficient evidence to meet this threshold.  Ms. McCready must show a direct connection between her claim for CAT impairment and the car accident.  The evidence did not match the story that Ms. McCready is telling.  There is a significant lack of medical continuity between her car accident and her condition today.

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.