NEBs Granted Due to Worsening of Pre-existing condition - Biro and Unica

July 09, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Biro and Unica

NEBs:

Date of Decision: June 8, 2017
Heard Before: Adjudicator Rosemary Muzzi

John Biro was injured in a car accident on March 11, 2007 when he was rear-ended.  He applied for and received statutory accident benefits from Unica but when the parties were unable to resolve their disputes through mediation Mr. Biro applied for arbitration at the FSCO.

Mr. Biro was diagnosed in 1988 with ankylosing spondylitis or psoriatic spondyloarthropathy (AS). The main visible symptoms of the condition are limited mobility, kyphosis, a bent-forward posture due to a fused lower back and neck with marked restrictions in neck movement, and pain. The parties disagree about the state of Mr. Biro’s condition pre-accident and its effects and impact on Mr. Biro’s function pre-accident, and they disagree about the need for many of the benefits claimed. Mr. Biro has been using marijuana to treat his AS and to treat the pain caused by the accident injuries. He produces the marijuana himself and has accrued expenses that he expects Unica to reimburse as medical benefits.

Issues:

1. Is Mr. Biro entitled to a NEB?
2. Is Mr. Biro entitled to an attendant care benefit and if so, what amount and duration?
3. Is Mr. Biro entitled to a medical benefit for medical?
4. Is Mr. Biro entitled to a medical benefit for a psychological treatment plan dated August 17, 2011?
5. Is Mr. Biro entitled to a medical benefit for physical therapy and a mobility pursuant to a treatment plan dated May 26, 2011?
6. Is Mr. Biro entitled to a medical benefit for transportation services from the Red Cross in the amount of $699.65, pursuant to a treatment plan dated June 30, 2011?
7. Is Mr. Biro entitled to a medical benefit for massage therapy, pursuant to a treatment plan dated January 27, 2012, in the amount of $1456.32?
8. Is Mr. Biro entitled to $8853.28 for Case Manager Services, as indicated in a treatment plan dated November 23, 2010?
9. Is Mr. Biro entitled to the following costs of examinations:
   1. In-home occupational therapy assessment by Claudia Maurice in the amount of $1491.78 (December 13, 2010)
   2. In-home occupational therapy assessment by Christine Farrell in the amount of $2041.89 (May 16, 2013)
10. Does Mr. Biro have a catastrophic impairment as defined in section 2(1.2)(g) of the Schedule?
11. Does Mr. Biro have a catastrophic impairment as defined in section 2(1.2)(f) of the Schedule?
12. Is Mr. Biro entitled to interest on any amounts owing?
13. Is Mr. Biro entitled to a special award?
14. Are the parties entitled to their expenses of the hearing?

Result:

1. Mr. Biro is not entitled to a non-earner benefit.
2. Mr. Biro is entitled to a monthly attendant care benefit in the amount of $523.42 for the 104 weeks after the accident.
3. Mr. Biro is entitled to a medical benefit of $30 per day for medical marijuana only from February 11, 2011 and ongoing.
4. Mr. Biro is entitled to a medical benefit for psychological treatment in the amount of $6270.70.
5. Mr. Biro is not entitled to any other medical benefits claimed.
6. Mr. Biro is not entitled to the costs of examinations claimed.
7. Mr. Biro is entitled to interest on the amounts outstanding in accordance with the Schedule.
8. Mr. Biro is entitled to a special award on the amounts outstanding with respect to the medical marijuana and the psychological treatment plan.
9. The parties shall bear their own expenses.

The Arbitrator me to disregard all of Mr. Biro’s testimony, arguing that it was untruthful. Unica emphasized Mr. Biro’s lack of credibility in his evidence about his pre-accident health and function, and his lack of candour in his reports to assessors who opined on his case after the accident. Despite examples of conflicting testimony, exaggeration, forgetfulness and some general confusion in relation to his accounts to the assessors, the Arbitrator was not satisfied that the entirety of Mr. Biro’s testimony should be disregarded.

Some of the details Mr. Biro remembered about his function, employment, and health history are generally in accord with and confirmed by the other evidence before me.  However, Mr. Biro also admitted during his testimony that he was not going to remember well what his actions and function were before the accident and that the documents in evidence would be the best source for that information.  In light of this admission and Mr. Biro’s ability to recollect, the Arbitrator relied on the documents in evidence to paint the best picture of Mr. Biro’s health and function during the period before the accident.

With respect to his lack of candour in his reports to the assessors, the Arbitrator found Mr. Biro was a poor historian in that he had a general tendency to tell only part of the story. The Arbitrator considered Mr. Biro’s evidence in the context of all of the other evidence and given it the weight I deemed appropriate in the circumstances.

Mr. Biro must show that the impairment that gives rise to the claim is caused by the accident. Unica raised causation as an issue in Mr. Biro’s claims to a non-earner benefit a year after the accident. While Unica initially paid the non-earner benefit (and other benefits) to Mr. Biro, it took the position that he was no longer entitled to the non-earner benefit because any continuing impairment was as a result of the normal progress of his AS and not as a result of the 2007 accident.

The Arbitrator reviewed the medical evidence and testimony, and found the accident of March 2007 materially contributed to an aggravation of Mr. Biro’s AS, his pain, and his impairments.

Initially, Unica’s medical assessors themselves agreed that the accident aggravated Mr. Biro’s pre-existing condition, Unica approved medical treatment and the weekly non-earner benefit as well.  Medical evidence was presented at the hearing supporting the cessation of benefits. To found its argument Unica relied on Dr. R’s opinion that directly after the accident, Mr. Biro’s condition had been aggravated but then he returned to his pre-accident levels of function in mid-2008, around the time that the treating rheumatologist, also noted an improvement. Dr. R attributed any further worsening of Mr. Biro’s pain and function to the AS’s natural progression. Dr. R’s theory of the progression of Mr. Biro’s condition is that he had significantly restricted movements as far as back as 1998 and a temporary change in status as a consequence of the accident in March 2007. Then there was a significant improvement by 2008, back to the pre-accident baseline, which would be consistent with the nature of improvement following the types of injuries Mr. Biro sustained in the accident.

The Arbitrator however, preferred the opinions of other specialists who concluded that the accident caused Mr. Biro’s injuries and continued disability as anticipated by the Schedule. Because of the injuries to his neck and low back and aggravation of his pre-existing AS from the motor vehicle accident, Mr. Biro continues to experience constant severe pain in his neck and low back, associated with severe impairment of physical function.

Mr. Biro’s pre-existing health and function is significant to the analysis of his entitlement to the non-earner benefit and a catastrophic impairment designation. Therefore, it is important to set out his circumstances with some clarity. With respect to work history, contemporaneous with the diagnosis and treatment of his AS in the late 1990s, Mr. Biro was advised to stop performing heavy labour and was therefore unable to continue in his work as a roofer. Mr. Biro applied for disability benefits both through the CPP Income Security Program and the Ontario Disability Support Program.

Mr. Biro testified that his only real limitation was that he was unable to do heavy construction work. He underwent retraining, however in August 2005, in consultation with ODSP staff, it was noted that his “criminal record and stiff neck syndrome are serious barriers, but not impossible”. Mr. Biro testified that the last time he was employed was within a year of the accident for at least 6 months. He drove a tractor trailer hauling loads. The documentary evidence supports that Mr. Biro worked only sporadically in 2005 and 2006 and he earned very little money. Mr. Biro also admitted that he had trouble with some of the driving: he could not reverse and he had trouble lifting and moving the loads.

Mr. Biro also purchased a tow truck in an attempt to operate a tow truck business. He testified that the period of time he spent trying to repair the tow truck, purchasing the necessary parts and making it operational, he considered work. Detective Sergeant Lloyd testified that Mr. Biro would be seen driving the truck around town. There is little evidence that Mr. Biro could not accomplish his daily activities except when initially diagnosed with AS and he testified that his daily activities were more easily accomplished after he began his treatment. Mr. Biro testified that he was 100% independent before the accident and able to care for himself, clean the house, do the cooking, and drive. His housekeeping tasks included laundry, vacuuming, sweeping, mopping, cutting the grass, shovelling the driveway, shovelling snow off the roof in wintertime, cleaning eaves troughs, keeping the flowerbeds neat, general house maintenance, grocery shopping, maintaining vehicles, and splitting firewood in the winter season.

There is some support for Mr. Biro’s evidence about his activities of daily living. The Arbitrator found there is sufficient evidence about Mr. Biro’s activities pre-accident to show that he engaged in work and social activities to a limited degree but was able to take of himself and his home despite the AS.

Unica paid Mr. Biro a non-earner benefit up to December 20, 2011. Unica suspended the non-earner benefit from December 21, 2010 in accordance with section 37(7) of the Schedule when Mr. Biro, on the advice of his then counsel, refused to attend the insurer’s examination under section 44(1) on December 16, 2010. Mr. Biro eventually agreed to attend the examination but Unica did not reinstate benefits determining that he did not qualify based on the opinion. The question of whether Mr. Biro suffers a complete inability to carry on a normal life as a result of the accident requires an examination of change in function that amounts to his being continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident with continuously meaning “uninterrupted”.

While it is true that Mr. Biro’s activities of daily living have changed to a notable degree after the accident, the preponderance of the evidence shows that his function has not been so limited as to amount to a complete inability to carry on a normal life. The preponderance of the evidence is that post-accident Mr. Biro could not engage in certain of his pre-accident activities. Mr. Biro stopped driving altogether soon after the accident, losing his licence in mid-2007.

Mr. Biro could not do many of his housekeeping tasks and hired someone to help him. There was also evidence that Mr. Biro is still able to engage in some of these heavier activities. For example, there was evidence that he tuned up a snow blower recently and got it all ready for winter. He was also seen cutting grass. Evidence about Mr. Biro’s social activities in a reasonable period pre-accident was quite thin and suggested that many of his outdoor activities ceased well before the accident. Therefore, there was virtually no evidence about social or outdoor activities post-accident to compare.

Mr. Biro also had no employment post-accident of the type he had pre-accident because he was unable to drive due to his aggravated disability. However, the activity in which Mr. Biro has been participating post-accident and that appears to consume a lot of thought and whatever amount of energy he has is a medical marijuana growing enterprise. 

Mr. Biro testified that knowing marijuana had medical values, he started researching medical marijuana and attended his first medical marijuana expo in 2010 where he met a doctor who referred him to a medical marijuana consultant in BC. The licences followed. While his licence allows him to have up to 146 plants, Mr. Biro testified that he has approximately 30-40 currently.

The degree to which Mr. Biro has grown his enterprise and the mental and physical effort he has mustered to create a success of it speaks to his abilities to engage in meaningful activities that are at least equal to those he engaged in before the accident. He can accomplish his personal care and some of his home maintenance activities, he can care for his plants, he can direct, supervise and work with others in his marijuana growing enterprise. He can do at least as much as he was doing before the accident.  On the balance of the evidence the Arbitrator found that he does not have a complete inability to carry on a normal life and therefore is not entitled to a non-earner benefit.

The Arbitrator reviewed the claim for ACB, the evidence, the forms submitted and concluded the preponderance of the evidence supports a need for the kind of attendant care recommended in the first Form 1. In particular, they found that he required assistance with transportation, because he lost his licence in June 2007, assistance with heavy indoor tasks, and with lifting above his shoulders and down low. Mr. Biro was not fully independent despite what Mr. Biro himself reported to assessors. Furthermore, there is the evidence of Mr. Biro and his witnesses and medical evidence that confirms that he continues to be unable to reach, stretch, bend over and accomplish some personal tasks within and outside the home environment.  Therefore Mr. Biro is entitled to attendant care at the rate of $523.42 per month from the date of accident for 104 weeks.

Unica has paid Mr. Biro $95,255.46 in medical benefits up to the date of arbitration. Section 19(1) of the Schedule prescribes that the sum of the medical and rehabilitation benefits paid in respect of an insured person shall not exceed, for any one accident, $100,000, unless the insured person sustained a catastrophic impairment the Arbitrator found he did not.

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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.