McCready and State Farm Mutual Automobile Insurance Company

In the May 1, 2017 decision of McCready and State Farm Mutual Automobile Insurance Company, Jonathan Schrieder successfully defended the Insurer against a broad range of claimed issues and benefits. Specifically, there was exposure at arbitration for: (1) a determination that the Applicant’s injuries were catastrophic in nature, (2) attendant care benefits, (3) medical benefits, (4) a special award, and (5) costs and interest. The Applicant submitted a medical expert report that put her Whole Person Impairment (‘WPI’) rating at 53%, which would have entitled her to the $1,000,000.00 CAT limits. Despite a number of complicating factors, Mr. Schrieder effectively persuaded arbitrator Jeff Musson that the Insurer had properly denied each and every disputed issue. Perhaps most important to the overall determination was witness credibility (or lack thereof).

Facts

In March 2011, the Applicant was involved in a serious motor vehicle accident (‘MVA’) with a police car on Highway 403. Her vehicle was overturned and the Jaws of Life were required to extricate her. Despite the severity of the accident, the Applicant suffered only bruising and soft tissue injuries. However, her case was further complicated when she doubled over in pain while showering in December 2013. Her back seized up and she was unable to move without assistance. At the time of arbitration she testified that that she was experiencing severe pain to her left shoulder, neck and left hip, and that the genesis of her pain symptoms was the MVA, not the shower incident. Muddying her symptomatology even further was an overlay of psychological issues and difficult life circumstances unrelated to her case.

Credibility and Causation

Soft tissue injuries are some of the most perplexing in the realm of bodily injury insurance litigation. On one hand, serious impairment is difficult for claimants to substantiate as there is often no objective basis for their alleged pain symptoms. On the other, the lack of clinical evidence makes disproving the existence of the alleged pain just as tricky. Accordingly, witness credibility is often a key factor in cases that turn on these types of injuries. The case at hand further exemplified this principle. After considering the Applicant’s testimony under cross-examination, Arbitrator Musson concluded that it was contradictory and lacked credibility. This finding hung like a dark cloud over all of her evidence submitted at arbitration, including some of the clinical findings of her assessors.

The first issue relating to the Applicant’s credibility was that of causation between the shower incident and the MVA. While the Applicant did undergo some physiotherapy following the MVA, she had stopped in August of 2011 (about 5 months post-accident). In the meantime, she had returned to work merely 5 days post-MVA as a Dietary Aid. Approximately 1.5 years after that, she enrolled in a Personal Support Worker education program to upgrade her employment and passed with honours. As argued at arbitration, her new job would usually be considered more physically demanding than her prior job. The shower incident occurred approximately 2 years and 9 months post-MVA. Following this incident, the Applicant stopped working in any capacity, and had yet to return at the time of arbitration more than 3 years later. She applied for Employment Insurance and underwent extensive chiropractic treatment.

The Applicant’s credibility suffered a further blow thanks to a careful review of her administrative paperwork relating to the aforementioned employment, treatment and social assistance programs. Under cross-examination, she admitted that she had falsified information on a number of forms. For instance, she denied being injured as a result of an MVA on an EI Benefits questionnaire despite being explicitly asked. Moreover, a social media sweep of the Applicant’s online accounts and surveillance obtained from private investigators both called into question the alleged severity of her injuries.

WPI Rating

The onus of proving CAT impairment is always on the claimant. As noted above, the Applicant in this case claimed CAT impairment on the basis of her WPI rating. Her WPI rating was set at 53% on the basis of a CAT report by a general practitioner (the report considered findings from prior physiatry, psychology and occupational therapy assessments). As explained in footnote 2 (see above), a claimant must be 55% impaired in order to meet CAT determination, but the Applicant’s 53% rating could be rounded up to the nearest whole percentage ending in a 0 or 5. Arbitrator Musson correctly opined that this left the Applicant zero margin for error. By comparison, the Insurer calculated a WPI of 27%.

The largest area of impairment in the Applicant’s CAT report was a 12-15% rating for “digestive impairment/GERD.” This rating was assigned because the Applicant had developed heartburn symptoms after taking pain medication post-MVA. However, based on evidence presented by the Insurer at arbitration, Arbitrator Musson found: “GERD can be caused by a number of different factors, including being overweight, slow emptying of the stomach, alcohol consumption as well as coffee drinking. To diagnose GERD, the veracity of the patient must be counted on. As stated earlier, numerous examples brought the Applicant’s credibility into question” [emphasis added]. Thus, Arbitrator Musson concluded that the Applicant failed to meet her burden of proof in this case.

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