Insurer did not follow up with employer to investigate job options for insured

April 02, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: March 7, 2016

Heard Before: Adjudicator Robert Bujold

Javed Nader was injured in a car accident on May 16, 2010 when he T-boned another car at about 50 km/h. He wrote off his car but did not require immediate medical attention.  He was born in Afghanistan in 1986, but left in 2001, at the age of 15, to avoid the Taliban. Mr. Nader first emigrated to Russia and pursued some high school studies (completing grade 9), and also worked for his uncle in retail. In 2007, at the age of 21, he moved to Canada where he lived with his sister and her husband in their one-bedroom apartment. Mr. Nader testified that he slept on a sofa in their dining room. When he arrived in Canada, Mr. Nader spoke very little English. Mr. Nader was able to secure employment in July 2009 as a glass feeder and he was still employed at Decora Windows at the time of the accident.

Following the accident he applied for and received statutory accident benefits from State Farm, however disputes arose regarding Mr. Nader’s ongoing entitlement to certain benefits. The parties were unable to resolve their disputes through mediation, and after mediation failed Mr. Nader applied for arbitration at the FSCO.

Mr. Nader testified that he shared housekeeping responsibilities with his sister and that he did laundry, vacuumed, mopped the floor, cleaned windows, washed dishes, and cleaned the washroom. Mr. Nader testified “I did everything, although his sister did most of the cooking.

The issues in this hearing are:

1. Is Mr. Nader entitled to receive a weekly IRBs from March 26, 2011 to May 16, 2012?

2. Is Mr. Nader entitled to payments for housekeeping and home maintenance from March 19, 2011 to May 16, 2012?

3. Is Mr. Nader entitled to attendant care benefits from March 19, 2011 to May 16, 2012?

4. Is Mr. Nader entitled to interest for the overdue payment of benefits?

5. Is State Farm liable to pay a special award because it unreasonably withheld or delay payments to Mr. Nader?

Result:

1. Mr. Nader is entitled to receive a weekly IRBs from March 26, 2011 to May 16, 2012.

2. Mr. Nader is entitled to payments for housekeeping and home maintenance March 19, 2011 to May 16, 2012.

3. Mr. Nader is entitled to attendant care benefits from March 19, 2011 to May 16, 2012.

4. Mr. Nader is entitled to interest for the overdue payment of benefits.

5. State Farm is liable to pay a special award in the amount of $5,000.00 because it unreasonably withheld payment of IRBs to Mr. Nader.

Immediately following the car accident police and emergency vehicles attended the scene, but Mr. Nader did not seek medical attention at that time. Mr. Nader testified that the impact was very hard and had scared him, but he did not immediately feel pain. He testified that he was in shock. Mr. Nader called a friend to pick him up and he went home. He began to feel pain the day following the accident. He had a headache and felt pain in his neck, back, right shoulder and leg.

Mr. Nader attended at KIA Wellness Centre and began receiving active and passive therapy, including physiotherapy, massage therapy and chiropractic treatments. The first treatment plan from KIA is dated May 17, 2010. An OCF-3 also dated May 17, 2010 concluded that Mr. Nader sustained a substantial inability to return to his pre-accident employment or perform his pre-accident housekeeping tasks. A Form 1 dated May 21, 2010 prepared by another service provider identified attendant care needs in the amount of $472.53 per month. It appears that, on the basis of these and other submissions, State Farm began paying IRBs, housekeeping and home maintenance benefits, attendant care benefits, and approved various plans for treatment and assessments.

Mr. Nader first saw his family doctor, Dr. VS, approximately three weeks after the accident on June 5, 2010, at which time complaints of neck and low back pain are recorded in the doctor’s clinical notes. It appears that he prescribed pain medication, ice and ongoing physiotherapy. While Mr. Nader continued to attend quite regularly for treatment and assessments at various healthcare facilities, Mr. Nader’s attendances at his family doctor’s office were less frequent, approximately every month or two on average.

State Farm terminated Mr. Nader’s ongoing entitlement to IRBs, housekeeping and home maintenance benefits, and attendant care benefits, primarily on the basis of three insurer examinations (conducted by a physiatrist, a psychologist and an occupational therapist) in November and December 2010. For reasons that were not well explained, the OCF-9 that terminated Mr. Nader’s entitlement to these benefits was not prepared until March 18, 2011. Pursuant to the OCF-9, attendant care and housekeeping benefits were terminated effective March 18, 2011. IRBs were terminated effective March 25, 2011 on the basis that “the physiatry report recommends a gradual return to work over a 6 week period.” The OCF-9 provided that “post accident income pay stubs will need to be submitted while you gradually return to work over this 6 week period so that your benefit may be calculated accordingly.”

Mr. Nader maintains that, at the time of termination, he remained unable to return to work and, given the repetitive and heavy requirements of his job, there were no light duties that would have allowed him to participate in a graduated return to work program. Mr. Nader maintains that he continued to be substantially unable to return to his pre-accident work for the duration of the first two years post-accident and that, in fact, ongoing sequelae of the accident would prevent him from returning to his pre-accident job even today.

Mr. Nader never returned to his pre-accident job but he did get a job in a bakery in February 2013, approaching three years post-accident. It involved putting bread ingredients into an industrial mixing bowl and mixing the ingredients, but Mr. Nader testified that the work was mechanized by “pressing buttons”. Notwithstanding the automation, Mr. Nader found after a few months that the work was aggravating his right shoulder, neck and mid-back pain, so he quit that job. At the time of the hearing, approximately five years post-accident, Mr. Nader had just started a job similar to his pre-accident job as a glass feeder, except that, according to Mr. Nader, the work is light to moderate and he has the aid of a “lifting machine”. At approximately one year post-accident, he began a gradual return to his pre-accident housekeeping duties. He maintains that, by two years, he had returned to performing all such tasks, other than above-shoulder window cleaning. He had contacted State Farm to advise them of the fact he did not return to his job.

The Arbitrator noted that Mr. Nader is entitled to IRBs for the first 104 weeks of disability if, for this period and as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. For the following reasons, the Arbitrator was satisfied that Mr. Nader has met this test.

A worksite assessment concluded that the glass feeder job required physical demands of medium. The job was repetitive and included not infrequent heavy lifting well beyond 5-15 lbs The assessment also noted that Mr. Nader’s job involved constant standing; eye/hand/foot coordination; manual grasping; frequent walking; forward bending; twisting; forward neck movement; and, arm use at and below waist level. The noise level of the work environment is rated as high.

Dr. TD, an orthopaedic examined Mr. Nader and opined that, as a result of the accident, Mr. Nader was still disabled at the two year mark from returning to his pre-accident job or from performing any job that would require him to bend and lift heavy objects.

In an IE it was noted that the degenerative disc features noted were “mild”, and found at the most common level of the cervical spine for changes to occur. Further, the mild posterior protrusion was on the opposite side to where Mr. Nader had symptoms, and therefore did not correlate to his symptoms and his clinical presentation. Pursuant to this report State Farm terminated Mr. Nader’s entitlement to IRBs.  No evidence was presented that State Farm ever enquired whether Mr. Nader returned to work, nor if they enquired whether graduated work was available.

The Arbitrator noted it is most important for a first party insurer to act in good faith. This duty extends to continuing to adjust the insured person’s file with an open mind on the basis of new information, and to take reasonable steps to facilitate claims. This duty made it incumbent upon State Farm to make reasonable inquiries to determine the reason Mr. Nader did not return to work and, to follow-up with the pre-accident employer to confirm the availability (or not) of a graduated return to work. As no evidence to this effect was presented the Arbitrator ruled that this constituted a failure to adjust the file in good faith and disentitled State Farm in the circumstances of this case from being able to continue to rely on the initial position it took.

State Farm raised questions about Mr. Nader’s credibility. The Arbitrator addressed these questions noting that Mr. Nader had not disclosed a workplace fight and punch in the face which may have contributed to his injuries. The Arbitrator was not persuaded that the evidence impugned Mr. Nader’s credibility.

The Arbitrator concluded that Mr. Nader was substantially unable to engage in the essential tasks of his pre-accident employment when State Farm terminated his entitlement to IRBs effective March 25, 2011, and that due to failures owing at least as much to State Farm as to Mr. Nader, he remained substantially unable to return to his pre-accident employment for the balance of his claim to the two year mark.

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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.