Contradictory Evidence and Failure To Prove Case Results in Denial of NEBs

April 06, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M. N. K. A. v State Farm: Non-Earner Benefits; NEB; contradictory evidence; pre-existing addictions; pre-existing injuries; burden of proof

Date of Decision: January 24, 2017
Heard Before:  Adjudicator J.H. Bass

REASONS FOR DECISION AND ORDER

M.N.K.A. was injured in car accident on August 7, 2014 and sought benefits pursuant to the SABs. M.N.K.A applied for dispute resolution services to the LAT, but the parties were unable to resolve the issues in dispute.

ISSUES

1. Is M.N.K.A. entitled to receive a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period of February 7, 2015 and to date?
2. Is M.N.K.A. entitled to receive a medical benefit in the amount of $1,998.80 for chiropractic services?
3. Is M.N.K.A. entitled to payments for the cost of examination in the amount of $1,850.00 for chronic pain assessment?
4. Is M.N.K.A. entitled to interest on any overdue payment of benefits?

DECISION

The Arbitrator did not find on the balance of probabilities that M.N.K.A. is entitled to non-earner benefits, and did not find the two treatment and assessment plans reasonable or necessary.

BACKGROUND

M.N.K.A. was s driving out of a shopping centre parking area when he struck another vehicle. The airbags did not deploy and M.N.K.A. hit his chest on the steering wheel. Emergency services did not attend and a tow truck service arranged for a rental vehicle which he drove home. He visited his family doctor, as a result X-rays were taken and pain killers prescribed. He then started to attend a clinic for chiropractic, massage and exercises.

M.N.K.A. had a history of previous health problems, with acute back pain starting in 2006.  On June 27, 2011, he was injured in a work place accident, lifting a weight. He received disability benefits from the Workplace Safety & Insurance Board for about 11 months after the injury. At the time of the motor vehicle accident, and continuing to the present, M.N.K.A. has been receiving benefits under the Ontario Disability Support Program. M.N.K.A. is on methadone treatment for a prior opioid addiction.

M.N.K.A. argues that he suffers a “complete inability to carry on a normal life” due to the motor vehicle accident, which caused increased pain in his lower back and legs and serious depression, requiring an increase to his methadone dosage.  In July 2014, a month before the motor vehicle accident, his family doctor noted M.N.K.A. was requesting a disabled parking permit. 

The Arbitrator reviewed the various medical reports, the law, and other evidence in this case. He noted that the fact that M.N.K.A. had extensive pre-accident medical problems does not in itself disentitle him to NEBs – the test is whether he suffers “a complete inability to carry on a normal life” as a result of the motor vehicle accident.

After considering all the medical reports, the Arbitrator did not find convincing evidence that M.N.K.A. suffers an “inability to carry on a normal life” caused by the motor vehicle accident.  The Arbitrator noted that there is contradictory evidence in the clinical notes and records about the methadone treatment he was receiving, and the nature of his employment.

After considering all the evidence the Arbitrator found that M.N.K.A. has not shown on the balance of probabilities that he suffers “a complete inability to carry on a normal life” as a result of the motor vehicle accident and is therefore not entitled to non-earner benefits.

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.