Failure to keep good records and to show worsening of quality of life lead to denial of claims

January 26, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

NR v Pembridge LAT 16-003776

Decision Date: December 12, 2017
Heard Before: Adjudicator Rupinder Hans

NEB and ATTENDANT CARE:

NR was injured in a car accident on March 21, 2013 when a someone made a left turn in front of his vehicle leading to a crash. NR applied for and received an ACBs under the SABs from Pembridge. NR is appealing the stoppage of the ACB, and denials of a NEB, and medical benefits for dental services, and a TMJ assessment.

Issues: applicant fails to show how post accident life is impacted by worsening of pre-existing conditions; applicant fails to keep good financial records for ACB claimed

1. Is NR entitled to a NEB in the amount of $185.00 per week from July 20, 2014, to date and ongoing?
2. Is NR entitled to an ACB in the amount of $787.26 per month, from March 3, 2013, to March 31, 2017?[1]
3. Is NR entitled to a medical benefit in the amount of $20,524.00 for dental services?
4. Is NR entitled to a medical benefit in the amount of $3,938.72 for a TMJ assessment?

RESULT

1. Based upon a review of the evidence and submissions presented, the appeal is denied on all four issues.

The Schedule provides that NR must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident in order to be entitled to a NEB.

It is not disputed that NR had severe lumbar problems prior to the accident.  NR asserts that he was diagnosed in 2008 with multilevel disc herniation with stenosis.  In February 2010, he was involved in a car accident that left him unable to work.  A MRI conducted in July 2011 states, among other things:  at the L4-L5 level: moderate spinal stenosis; at the L5-S1 level: mild spinal stenosis.

NR purports that this lower back condition was stable before the accident, and aggravated by the accident.  He points to a September 21, 2015 CT scan report that states that the L4-L5 level, the spinal stenosis had “worsened since the prior study.” He further relies on the November 26, 2015 MRI report which states there is “severe” spinal stenosis.  On February 11, 2016, NR underwent a discotomy.  He has also experience a left foot drop that has persisted. NR relies on the CNR of his family doctor to support his case.

The Arbitrator noted that while a list of ailments is helpful, in order to find that NR is entitled to a NEB, NR must provide evidence of his life before the accident as a baseline, so it may be compared to his life after the accident.  NR has failed to provide a pre-accident baseline. 

NR’s submissions and evidence is missing a thorough analysis with respect to the activities NR could engage in prior to the accident in comparison to what he can do post-accident.  It is not possible to assess whether NR is prevented in engaging in substantially all of the pre-accident activities that he ordinarily engaged in without such information.

NR has been a victim of two motor vehicle accidents which had a serious impact on his life, however, he has not demonstrated that he has suffered a complete inability to carry on a normal life as a result of the March 21, 2013 accident.  NR has not meet his burden, and is thus, not entitled to a NEB.

The Schedule authorizes attendant benefits to pay for reasonable and necessary expenses incurred to hire someone to assist with self-care activities that an insured person is unable to perform as a result of the accident related injuries.  These activities can include, bathing, assistance with dressing, hygiene, grooming, feeding, and assistance with ambulating.

An occupational therapist assessed NR and prepared the Assessment of Attendant Care Needs.  He concluded that NR would require assistance with his personal care tasks.  Consequently, NR was paid an ACB until August 31, 2013.  On July 2, 2014, after an Insurer’s Examination, a new Form 1 was completed by an occupational therapist, who concluded that NR does not require any attendant care to complete his personal care duties.  As a result, the respondent terminated the benefit.

Despite the denial, NR retained the services of a personal support care worker to whom he purportedly paid a flat rate for the services.  In this regard, NR provides nine expense sheets for attendant care and personal assistance services, all dated April 24, 2017 (collectively the “Expense Sheets”), and covering the period from July 1, 2014 to March 31, 2017.  Each Expense Sheet covers several months in duration, and the amounts paid range anywhere from $300.00 per month to $800.00.  In his submissions, NR states that the Expense Sheets were not obtained contemporaneously, instead they were generated later based upon the records that he kept for the amounts paid.

Aviva disputes the content of the Expense Sheets, stating that they are boilerplate documents filled-in more than four years post-accident, and the alleged services provided are vague in description.  Aviva points to the fact that all the Expense Sheets are all dated the same day.  The respondent asserts that they should be disregarded, and that NR’s reliance on them is disingenuous.

The Arbitrator concluded that NR is not entitled to ACBs claimed because he has not proven on a balance of the probabilities that he incurred the expenses as required by the Schedule.

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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.