March 31, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
H. C. v Certas: IRB entitlement; social media shows applicant operated a paper delivery business while claiming complete inability to work; conflicting testimony; questionable credibility; claim denied; no IRBs in post-104 week period
Date of Decision: February 6, 2017-
Heard Before: Adjudicator J.H. Bass
C.H. was a pedestrian hit by a car in an accident on July 24, 2014 and sought benefits pursuant to the SABs. C.H. was crossing the road at an intersection with a green light, when the driver of a car turning right failed to come to a complete stop and bumped into his left side. The driver was charged with failure to stop before entering the crosswalk. C.H. did not fall but complained of pain in his left leg and hip.
Certas paid Income Replacement Benefits (IRBs) from July 2014 to March 2015, and paid for various treatments for C.H., but in March 2015 declined to pay for further IRBs, and has declined to pay for two treatment and assessment plans dated September 4, 2014 and April 25, 2016, on the basis that they are not reasonable and necessary. C.H. disagreed with these decisions and applied for dispute resolution services to the LAT.
- Is C.H. entitled to IRBs of $350/week from March 2015 and to the date of the hearing?
- Is C.H. entitled to the psychological assessment set out in the OCF-18 of September 4, 2014 in the amount of $3,320?
- Is C.H. entitled to a chronic pain assessment set out in the OCF-18 of April 25, 2016 in the amount of $1,925?
- Is C.H. entitled to interest on any overdue payments?
- Is C.H. entitled to the costs of the proceedings?
- Is C.H. entitled to a special award pursuant to Regulation 664 (10) because the Respondent unreasonably withheld or delayed the payment of benefits?
- The Arbitrator determined to deny the first three benefits and therefore found it unnecessary to consider the last three.
C.H. was born on September 26, 1968 and is single. He immigrated to Canada in his early 30’s and holds a university degree in business from his home country. At the time of the accident he had been working for a paper company for about 6 weeks, in sales and delivery driving.
After C.H. was hit by the car emergency personnel took C.H. to the hospital by ambulance. At the hospital C.H.’s blood pressure was high and that he felt “very sad and stressed”. He stayed overnight as a result of the blood pressure concerns and the following morning took a taxi back to his car and drove home.
C.H. was off work for the months of August and September 2014, after which his employer told him his services were no longer required. He took high school courses starting in October 2014, and enrolled at Seneca College in the summer of 2015, graduating with a diploma in business in August 2016.
Certas paid C.H. IRBs of $350 per week from July 2014 to March 2015, about 6 months.
Entitlement to IRBs is in two parts, set out in sections 4 and 5 of the SABS. Benefits are payable for the first 104 weeks after the accident if the insured person suffers “a substantial inability to perform the essential tasks” of the person’s employment – that is, the job the person was doing at the time of the accident. Section 5 provides a stricter test for benefits to be payable after 104 weeks – whether the person suffers “a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience”.
The issue in this case is whether C.H. continued to suffer such a substantial inability from March, 2015, when the insurer ceased paying IRB’s, to July 23, 2016, when the 104 weeks ended. C.H.’s work for the paper company had involved driving his own car on sales calls and delivering orders of paper, including lifting, carrying and bending.
The Arbitrator reviewed the evidence and determined that the essence of C.H.’s case is that his psychological problems have prevented him from working. In this regard, C.H. relies on several medical reports. These included several diagnoses in 2014 that he is unable to work, and a disability certificate indicating that C.H. had a complete inability to carry on a normal life due to pain, sprains and adjustment disorders, and a comment that “his impairments are considered to be permanent”. A second Disability Certificate (OCF-3) on September 12, 2016 indicated that C.H. was “substantially unable to perform the essential tasks” of his employment at the time of the accident.
However, C.H. concedes that he started work as an Uber driver by August 2016 and that he was operating a paper business by October 2016.
Certas argues that there are other medical reports suggesting “the possibility of symptom magnification in certain areas”, and that there are no findings that would result in occupational disability. He was diagnosed with a WAD 2 injury.
Certas also produced video surveillance over a four-day period in November 2016 showing C.H. driving, bending, lifting boxes in and out of his car, walking and carrying packages. A LinkedIn page shows that C.H. had been operating a paper business form 2014-present.
Upon review of the testimony, evidence and the law the Arbitrator concluded that much of the earlier medical testimony was pessimistic as borne out by the video surveillance a few months later. On this basis, the Arbitrator did not find convincing evidence that C.H. would have been unable to return to his previous line of work by March 2015. Accordingly, C.H. has not shown on the balance of probabilities that he suffered “a substantial inability to perform the essential tasks” of his employment, for the period March 2015 to July 23, 2016.
Regarding the post-104 period the test is whether the claimant suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, from July 23, 2016 onwards. The Arbitrator noted that C.H.’s case is undermined by his admission that he working in two capacities – as an Uber driver and operating his own business – by the following month at the latest. This was conceded in response to the surveillance evidence.
Accordingly, the Arbitrator found that C.H. has not shown on the balance of probabilities that he is unable to engage in any employment for which he is reasonably suited by education, training or experience, for the period July 23, 2016 onwards.
After the accident, the claimant received physiotherapy, acupuncture and massage therapy, chiropractic, TENS, exercise, stretching, and heat therapy, until the respondent ceased funding the treatments in December 2014.
The Minor Injury Guidelines (“MIG”) provides for a maximum of $3,500 to be payable for treatment of a minor injury, where minor injury is defined as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” As there is no dispute that C.H.’s injuries are minor, the assessments would not be payable.