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ACCIDENT BENEFITS - Income replacement

Monday, September 23, 2019 @ 9:30 AM  

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Appeal by Cop from a decision of the Automobile Accident Insurance Commission allowing in part only his claim to income replacement benefits. The appellant was injured in a 1999 motor vehicle accident. Prior to the accident, the appellant operated a mixed grain and cattle farm and did creative work as an author, playwright and voice actor. He claimed that as result of the accident, he suffered from difficulty sleeping, numbness in his arms and hands, serious memory loss, severe headaches and shortness of breath. He claimed he was thus unable to do any of his pre-accident work and sought retroactive and prospective income replacement benefits. The insurer’s position was that, except for a short period of time after the accident when he suffered from a broken sternum, the appellant’s claimed disabilities were caused by health conditions that existed or would have developed independently of the accident. The Commission determined the appellant suffered a fractured sternum and a laceration on his right knee, but no other injuries because of the accident. The Commission accepted the opinion of the insurer’s medical examiner that the appellant would not be able to do heavy work, such as farm labour, for 90 days following the accident. Based on this, the Commission held that although the appellant’s current condition was not because of the accident, but due to a degenerative condition, he was entitled to income replacement for 90 days following the accident.

HELD: Appeal allowed. New hearing ordered. The finding of fact by the Commission that on day 91 following the accident the appellant was able to return to his pre-accident full-time employment demonstrated an error of law on the part of the Commission. None of the medical documentation that was unavailable to the insurer’s medical examiner when he rendered his report, but which bore on the weight it could be given, was referred to by the Commission when it analyzed the time for which the appellant was entitled to income replacement benefits post accident. The medical examiner also did not refer to contemporaneous medical records that showed that almost 300 days post-accident the appellant reported the existence of numerous aches and pains all over his body. No consideration was given by the Commission to this evidence when it considered the time the appellant was unable to work because of his accident-related injuries. There was evidence that strongly suggested the appellant’s accident-related disabilities continued well after the 91-day period the medical examiner referred to as the likely date by which the appellant should have returned to work. It was not incumbent on the Commission to accept this evidence, but the Commission was required to take this evidence into account when making its decision. Its failure to do so constituted an error of law.

Cop v. Saskatchewan Government Insurance, [2019] S.J. No. 284, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R. Leurer and B. Barrington-Foote JJ.A. August 2, 2019. Digest No. TLD-September232019003