In Tesfagiorgis and State Farm (FSCO A14-003779) the claimant was shut out of all benefits, including pre and post 104-week income replacement benefits. The claimant also sought to add the issue of a special award in her closing submissions.
The claimant testified that she had a clean bill of health before the accident. However, the insurer was able to lead evidence on the claimant’s numerous, pre-accident health issues – including a WSIB claim that was active right up to the time of the accident. To this end, Arbitrator Thérèse Reilly found that the claimant did not make a credible witness.
The claimant had worked as a part-time laboratory technician. She continued to work in this capacity for fourteen months after the accident. The claimant also obtained additional part-time jobs as a waitress, bartender, and door-to-door fundraiser, after the accident.
The claimant’s family physician admitted during cross examination that he thought the claimant could go back to work in a sedentary capacity.
Based on the claimant’s failure to report all of her post-accident income to the insurer, Arbitrator Reilly found that the claimant had not discharged her burden to prove the quantum of income replacement benefits sought. Arbitrator Reilly’s finding was made pursuant to section 33 of the SABS – where the insurer led evidence regarding its repeated requests for the claimant’s pre and post accident employment and income information.
For months after the accident, the claimant mostly complained of neck and back pain. Over twenty months later, the claimant began reporting blackouts, incontinence issues, headaches, tingling in her hands and depression. The claimant’s family physician and her treating neurologists could not find objective medical diagnoses to explain her subjective symptoms. Arbitrator Reilly agreed with the insurer, that the claimant’s additional symptoms were too remote to be causally linked to the accident.
Although Tesfagiorgis and State Farm (FSCO A14-003779) is not binding at the LAT, it serves as an important decision where insurers may challenge causation or rely on a technical defence, pursuant to section 33 of the SABS, if a claimant fails to provide crucial information for the insurer to determine the claimant’s entitlement to benefits.
