Injured Man Proves His Case of Chronic Pain and Treatment Outside MIG Approved - Yakubu and Wawanesa

December 16, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Yakubu and Wawanesa

Decision Date: October 19, 2017
Heard Before: Adjudicator Paulina Gueller

INCOME REPLACEMENT BENEFITS: applicant proves injuries fall woutside MIG dues to chronic pain; applicant entitled to IRbs, and medical benefits claimed; insurer acted fairly no special award made

Mr. Ibrahim Barbs Yakubu hurt in a car accident on May 21, 2015 when he was t-boned leaving work. He was taken to the hospital by ambulance. The hospital records show that he had no fractures and was released after tests were completed. He took a taxi home, and went to his family doctor the following Monday. He began treatment shortly thereafter. He also received Short Term Disability through his employer’s benefit program. However Long-Term Disability and CPP were denied. He sought SABs from Wawanesa however when mediation failed he applied to FSCO for arbitration.

Issues:

1. Is Mr. Yakubu entitled to receive a weekly income replacement benefit in the amount of $400.00 from May 17, 2016 to date and ongoing?
2. Is Mr. Yakubu entitled to receive medical benefits for physiotherapy as follows:
   1. $3,584.30, dated January 29, 2016;
   2. $2,230.58, dated September 15, 2015;
   3. $2,928.86, dated June 1, 2015;
   4. $2,474.05, dated July 23, 2015;
   5. $3,845.62, dated October 21, 2015.
3. Is Mr. Yakubu entitled to transportation expenses in the amount of $60.75 dated June 15, 2015?
4. Is Mr. Yakubu entitled to the cost of an examination in the amount of $1,934.45 for an In-Home Assessment, dated June 15, 2015?
5. Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Yakubu?

Result:

1. Mr. Yakubu is entitled to receive a weekly income replacement benefit in the amount of $400.00 from May 17, 2016 to May 21, 2017 only.
2. Mr. Yakubu is not entitled to receive a weekly income replacement benefit from May 22, 2017 to the date of this decision.
3. Mr. Yakubu is entitled to receive medical benefits for physiotherapy as follows:
   1. $3,584.30, dated January 29, 2016;
   2. $2,230.58, dated September 15, 2015;
   3. $2,928.86, dated June 1, 2015;
   4. $2,474.05, dated July 23, 2015;
   5. $3,845.62, dated October 21, 2015.
4. Mr. Yakubu is entitled to transportation expenses in the amount of $60.75.
5. Mr. Yakubu is not entitled to the cost of an examination in the amount of $1,934.45 for an In-Home Assessment, dated June 15, 2015.
6. Wawanesa is not liable to pay a special award.

Mr. Yakubu was born in Ghana on December 12, 1957. After completing high school in Ghana, he worked at his family’s farm. He immigrated to Canada in 1989 and he worked at DECO Automotive  for over 25 years. He started as a janitor and after 8 months he was promoted to the warehouse. He has been a machine operator for the last 24 years. At the time of the motor vehicle accident he used to operate 10 different cranes. He is married and has 3 teenage children.

He testified suffering neck, left shoulder, wrist, chest and lower back pain as a result of the car accident. When he was receiving physiotherapy he felt better, but the pain has to be measured on a day-by-day basis. Mr. Yakubu claims that he needs more treatment because he has chronic pain, Post-Traumatic Stress Disorder (“PTSD”), depression and impairment to function based on various medical reports.

Wawnesa takes the position that Mr. Yakubu’s injuries fall under the MIG and the medical benefits were capped at $3,500.00. Wawnesa provided Insurer’s Examination reports supporting its position.

Mr. Yakubu testified that before the accident, he used to help with some housekeeping chores like shovelling the snow, cutting the grass, gardening, vacuuming, laundry, and taking his children to soccer. He worked as a “bender crane operator”, continuously from 1991 to 2015. His job involved operating 10 different crane machines, for 8 hours a day, he had to stand, stretch his arm to grab the piece, turn his torso and put it into a basket. His average work week was five days or 37.5 hours, but sometimes he used to work seven days of the week. He also testified that after the accident, he tried to return to work on August 4 and 5, 2015, but despite being on modified duties, he could not continue because he was feeling pain and hurting himself. He has not tried to return to work since because of severe pain.

He testified that he still has lower back pain and he has continued with physiotherapy and taking pain medication. He would like to recover and resume working as he is the family’s breadwinner.

Various people gave evidence supporting Mr. Yakuba’s claim. Dr. S testified that from observation and psychometric testing, Mr. Yakubu has severe depression, moderate anxiety and mild hopelessness. She testified that the PTSD diagnosis did not reach the level of a full PTSD, clarifying that Mr. Yakubu had trauma but not complete compared with other people. She concluded that as a result of car accident Mr. Yakubu would meet the diagnostic criteria for Major Depressive Disorder, Severe and Somatic Symptom Disorder with Predominant Pain and Specific Phobia with symptoms of posttraumatic stress. Consequently, she recommended psychotherapy sessions to prevent further deterioration.

An orthopedic surgeon with an area of special interest in surgical problems related to the knee and shoulder examined Mr. Yakubu on July 18, 2016 and prepared a paper review concluding that Mr. Yakubu was “substantially impaired from returning to his pre-injury work activities as he was unable to meet the physical demands of his work and he recommended a chronic pain assessment to explore treatment modalities.

Wawnesa provided IE’s expert reports without requiring the attendance of Mr. Yakuba. The Arbitrator gave it very little weight because it is chronologically anterior to Mr. Yakuba’s reports.

An orthopedic surgeon conducted an Orthopedic Surgery Assessment and three paper review reports dated December 21, 2015 and February 8, 2016 and June 12, 2017, stating that Functional Abilities Evaluation  indicated that Mr. Yakubu demonstrated the ability to work at a light level and he would have been able to do all the tasks according to the FAE description of the job except for constant standing. However, his opinion was that no impairment was identified from the musculoskeletal perspective and Mr. Yakubu did not suffer a substantial inability to perform the essential tasks of his pre-accident employment and he would be capable of returning to work on a full-time basis, because there were no physical restrictions. In his report dated June 12, 2017, the surgeon concluded that “There is no compelling clinical information related to Mr. Ibrahim’s musculoskeletal status that would alter my previously expressed opinion. Therefore, it remains my opinion that from a musculoskeletal perspective, Mr. Ibrahim dos not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the subject matter vehicle accident.”

A psychologist conducted IEs of Mr. Yakubu on August 13, 2015, March 31, 2016 and May 25, 2017, concluding Mr. Yakubu does not meet the DSM-V criteria for a psychological disorder,

The Arbitrator reviewed the medical evidence and the law. The Arbitrator concluded that in order to succeed in his claim, Mr. Yakuba’s must prove that his injuries were predominantly not minor, showing that that chronic pain condition pain exist, and, is not a condition that was contemplated as being included in the MIG as “clinically associated sequalae”.

On a balance of probabilities, the Arbitrator was persuaded that Mr. Yakubu has provided credible medical evidence to support that he has developed chronic pain as a result of the accident. In all the reports, Mr. Yakubu has maintained his complaint about the psychological consequences of the accident. He has attended to his family doctor regularly and was examined by several experts. Therefore, his injuries are not primarily minor in nature.

The Arbitrator was persuaded that Mr. Yakubu has provided sufficient medical evidence that the treatment plans were “reasonable and necessary”, according to s. 15 of the Schedule. Accordingly, he has entitlement to the five treatment plans claimed.

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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.