Volume. 6 Issue. 22 – June 8, 2022
In ‘Umbrella Mishap More Significant Than Accident’, the Tribunal considers an application for a CAT determination, for an Applicant who had sustained a concussion when a yard umbrella fell on her head eight months prior, rendering her unable to return to work. The Tribunal also took great exception to an interaction between counsel for the Applicant and an expert witness shortly prior to the hearing.
In ‘Doing More Than You Were Before the Accident’, an Applicant who received NEB for nine months post accident, was not entitled to further NEB as the evidence suggested he was doing more after the accident than before.
Reason Codes Are Here – Added Layer of Understanding!
Exciting News! Search and Filter by Reasons
Reason codes add a deeper layer of understanding on the reason for the decision and associated issues in dispute. This added value is included in all subscription levels at no extra cost.
Try It Now!
Book your walk-through with an inHEALTH team member by emailing service@inhealth.ca or send us a message through Live Chat!
Umbrella Incident Trumps Accident & Witness Compromised by Interaction with Counsel
Umbrella Mishap More Significant Than Accident – The Applicant Rao, injured in an April 2016 accident, was in the process of recovering from an August 2015 incident which had resulted in a concussion and an inability to work.
As it happens, in 20-001654 v Wawanesa, Rao was on her way to her first day at work following the earlier incident, when the subject accident occurred. The earlier incident involved a large yard umbrella striking her on the head as it fell, which resulted in what was determined to be a concussion. The Tribunal noted that the subject accident was “relatively light” but was prepared to accept that it did affect Rao. As a result of the accident in question, sought a CAT determination.
Wawanesa submitted that there was no reliable evidence attributing Rao’s current condition to the accident, objective evidence points to her being better now than she was leading up to the subject accident, and validity testing regarding cognitive and psychological functioning “follows an abnormal course”. The Tribunal confirmed “I, generally, agree.” The Tribunal found that Rao’s “symptoms and general psychological state deteriorated after and as a result of the subject accident – perhaps even to catastrophic levels for a period.” However subsequently “she appears to have improved from her low point following the accident to non-catastrophic levels.” Generally, the Tribunal found that “psychological and neuropsychological and cognitive testing from the various assessors does not point to a marked impairment; rather, they point more likely to mild impairments, and perhaps less given the validity concerns”.
Rao also sought entitlement to post 104 IRB. The Tribunal found that “while it’s not clear by a preponderance of the evidence that M.R. currently suffers a “complete inability” from a combination of the two events and her underlying conditions, M.R. has not established that her current inability is “as a result of the accident”. While accepting that the accident affected Rao more than would have been anticipated given she was still recovering from the umbrella incident, and may well have sustained a second concussion, “the evidence points to it being mild from a physiological point of view and seems to have resolved on its own.” The Tribunal concluded that Rao “appears to have returned to post-umbrella, but pre-accident impairment levels – and in fact improved from those levels.”
There was further found to have been a significant evidentiary issue with one of Rao’s experts. The expert had completed a consultation note that made no mention whatsoever of the subject accident, referring only to a “history of PTSD concussion in 2015”. However, during testimony, the expert “referenced the subject accident without being prompted and was emphatic that it contributed to M.R.’s presentation.” Queried by counsel for Wawanesa as to why her testimony was now inconsistent with her records, the expert offered that she had spoken to Rao’s lawyer seeking clarification as to why Wawanesa had summonsed her, and it was during that conversation that she first became aware of the subject accident.”
The Tribunal found that “the circumstances of the discussion greatly weakens her testimony… my review of the doctor’s conflicting evidence overall leads me to assign less weight to it.” While noting that counsel for Rao was not subverting evidence, he ultimately “provided significant, substantive information to the witness with a net effect of the doctor providing conflicting evidence”. Therefore “under the circumstances, my consideration of (the expert’s) evidence is taken with care.”
Nine Months NEB Suffices
Doing More Than You Were Before the Accident – Injured in a January 2020 accident, the Applicant Zia, in 20-014022 v Economical, sought payment of NEB from November 2020 through to the 104 week mark
The Tribunal noted that Zia had sustained an objective impairment as he fractured his left elbow which required the insertion of a prothesis. Further, given evidence of ongoing pain and stiffness, Zia was found entitled to four treatment plans for physical therapy. The Tribunal accepted that Zia “may have had some more serious functional limitations in his daily activities in the period shortly following the accident”.
However, the Tribunal did not find that Zia had “any ongoing accident-related limitations that would result in a complete inability to carry on a normal life from November 2, 2020 onwards.” It was noted that following the accident, Zia graduated from high school and has successfully completed two years of university and he is a straight A student. In addition, he had gained summer employment with his university as a research assistant which required him to work 7 hours a day 5 days a week and had. also worked as a peer tutor. Ultimately, the Tribunal agreed with Economical that “the evidence supports that he has carried out more activities of daily living post-accident than he did pre-accident.”
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!