Insured's testimony inconsistent with medical records and lay witnesses. Does not qualify for non-earner benefits.

October 16, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Decision Date: 2016-08-30

Heard Before: Adjudicator Stuart Mutch

Anju Gupta was injured in a car accident on October 19, 2013, when she was the passenger in a van struck from the rear by another car. She applied for accident benefits from State Farm but when the parties were unable to resolve their disputes through mediation she applied for arbitration at the FSCO.

Issues:

1. Is Mrs. Gupta entitled to receive Non-Earner Benefits in the amount of $185.00 per week from May 16, 2014 to date and ongoing?

2. Is Mrs. Gupta entitled to the cost of the following treatment plans:

   1. for a chronic pain program by All Health in the amount of $15, 273.54?

   2. for massage therapy by SA of HealthPlus Rehab in the amount of $1,090.00?

3. Is Mrs. Gupta entitled to the cost of the following examinations:

   1. An orthopaedic assessment by Dr. T of Cambridge Medical Assessments in the amount of $2,486.00?

   2. A psychological assessment by Dr. M of Cambridge Medical Assessments in the amount of $2,404.24?

4. Is State Farm liable to pay a Special Award because it unreasonably withheld or delayed payments to Mrs. Gupta?

5. Is either party entitled to its expenses?

Result:

1. Mrs. Gupta is not entitled to Non-Earner Benefits.

2. Mrs. Gupta is not entitled to the cost of the above described treatment plans.

3. Mrs. Gupta is not entitled to the cost of the above described examinations.

4. Mrs. Gupta is not entitled to a Special Award.

5. Mrs. Gupta shall pay to State Farm a total of $22,340.14 for its expenses, plus HST as applicable.

Mrs. Gupta was 47 years old at the time of the accident. She testified that she had been employed until 1999 or 2000 when she suffered a work-related injury that resulted in pain in her neck and lower back. Since then she has been a full-time homemaker, married with two children living in a four-bedroom house. She testified that before the accident she did most of the cleaning, cooking, grocery shopping, laundry and home maintenance, including grass cutting, other gardening and snow shovelling. She chauffeured her daughters and helped them with their homework. She attended her place of worship on a daily basis where she would sit on the floor to pray. She did volunteer work there once per week. She socialized with family and friends at her place of worship and at dinners, birthday and wedding celebrations. She participated in dancing and badminton. Mrs. Gupta and her family took trips to Cuba and to the United States. She also travelled to India every three or four years to visit family. Mrs. Gupta testified that everything “was perfect” in the one year before the accident and that she was not prevented from doing any of her activities.

Mrs. Gupta testified that during the accident her body was shaken violently that she became very nervous after that. She was taken to hospital by ambulance. She did not suffer any broken bones in the accident. She was discharged with a prescription for analgesics. She saw her family doctor and had massage, acupuncture and physiotherapy treatment. She stopped the treatment when the cost was no longer covered by State Farm.

The Schedule provides that an insurer shall pay a non-earner benefit to an insurer person who sustains an impairment as a result of an accident and who suffers a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident. A complete inability to carry on a normal life is defined as an impairment that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.

Considering whether an insured qualifies for NEBs necessitates a comparison between what an insured was doing for a reasonable period before the accident and what an insured is capable of doing after the accident. “A complete inability” suggests that there needs to be a substantial change in an insured’s ability to function, as a result of the accident.

There are contradictions between Mrs. Gupta’s evidence and the records of her treating physicians. There are also contradictions between her evidence and what she told assessors regarding her pre-accident condition. Mrs. Gupta described herself as a physically active homemaker prior to the accident, whose activities included snow shovelling and cutting the lawn.  She told Dr. D, a psychiatric assessor, that she had no pre-existing issues except right arm pain due to a work-related injury.

The notes of Mrs. Gupta’s treating physicians paint a different picture of Mrs. Gupta’s pre-accident medical condition. The clinical notes of Mrs. Gupta’s family physician, Dr. S, span October 1, 2010 to January 29, 2016. On six of the twelve recorded visits preceding the accident Mrs. Gupta complained of headaches, on five visits pain in her arms or legs, on three occasions of sleep disturbances, on three occasions of dizziness, and on three occasions of heightened stress. In cross-examination Dr. S admitted that Mrs. Gupta had chronic headaches and neck, back and shoulder pain before the accident. When it was pointed out that these complaints did not appear in every note, Dr. S admitted that he did not make a note of it each time “but she complained every time”. The clinical notes and records of Mrs. Gupta’s treating psychiatrist Dr. P from August 31, 2010 to December 16, 2015, revealed that in the period preceding the accident Mrs. Gupta consulted Dr. P ten times. On five of those occasions, Dr. P referred to pain and/or stress management. On three occasions Mrs. Gupta complained of sleep difficulties. On six occasions Dr. P noted that Mrs. Gupta’s mood tended to fluctuate or that Mrs. Gupta was stressed or that she was angry and irritable.

The records of her treating physicians show repeated complaints of headaches, dizziness, shoulder and arm pain, stress and sleep problems prior to the accident, yet she told Dr. M, an orthopaedic assessor, that she used to sleep “for 8 hours throughout the night”. On the other hand, she told Dr. D that she slept with “frequent awakening” before the accident. Mrs. Gupta told Dr. Mks, another orthopaedic assessor, that she was on long-term disability for a work related injury to her neck, back and arm and that she had never recovered prior to the accident, which completely contradicts the self-description given in her testimony. Mrs. Gupta admitted on cross-examination that she had neck, right shoulder, back pain and headaches before the accident. Mrs. Gupta’s daughter admitted on cross-examination that, prior to the accident, her mother had damage to her neck and back, that she had mood swings and complained of pain.tes

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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.