April 10, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
16-000929 v TD: Income Replacement Benefits; IRBs; applicant’s credibility; video surveillance shows applicant being extremely active;
Date of Decision: February 3, 2017
Heard Before: Adjudicator Chris Sewrattan
The applicant was injured in a car accident on February 21, 2015. He applied for and received benefit including IRBs under the SABs, however, TD terminated the applicant’s IRB on April 4, 2016, taking the position that he does not meet the test for entitlement. The applicant disputes that termination.
- Is the applicant entitled to an income replacement benefit from April 4, 2016 to the present and ongoing?
- The Applicant is not entitled to an income replacement benefit from April 4, 2016 to the date of this decision.
The test for entitlement to payment of an income replacement benefit is set out in of the Schedule, and provides for the first 104 weeks following the accident, an applicant is entitled to an IRB if he can prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment. For analytical purposes, the test can be broken into three steps:
- Was the applicant employed at the time of the accident?
- Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment as the owner and operator of an automobile garage?
The applicant’s claim falters at the third step. In the analysis to follow, it is important to remember that the applicant, who is represented by counsel, did not provide submissions, case law, or the statutory test for entitlement to an IRB. The applicant’s claim is inferred from the evidence that he has put before the Tribunal.
1. Was the applicant employed at the time of the accident? The Applicant provided information that satisfied the Arbitrator that he was employed.
2. Causation? The Applicant is entitled to an IRB only if his inability to work as the owner and operator of his automobile garage is caused by and manifests within 104 weeks of the accident. TD does not contest causation in a manner that detracts from the applicant’s ability to meet his onus on this issue. The Arbitrator is satisfied that whatever injury or impairment the Applicant has sustained or endured is caused by the motor vehicle accident.
3. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment as the owner and operator of an automobile garage? Two determinations are required to answer this question. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform these essential tasks?
The Arbitrator reviewed the testimony, and the IE evidence provided by TD in the form of a job site assessment. The report represents the best and most comprehensive examination of the applicant’s pre-accident tasks. The Arbitrator accepted the report’s findings in this regard.
Is the applicant substantially unable to perform the essential tasks of his employment? The Arbitrator reviewed all of the evidence provided by TD including video surveillance. The Arbitrator noted that the surveillance shows the applicant bending from the waist and arching his back in manners that one would not think possible considering the pain he describes to the examining medical professionals.
The Arbitrator also noted that there are serious concerns with the credibility of the applicant’s testimony, and his self reporting of his conditions to medical professionals, and other inconsistencies.
On this basis, the Arbitrator determined that the applicant has failed to prove that he is substantially unable to perform the essential tasks of his employment as an owner and operator of an automobile garage. The onus is on the applicant to prove this point on a balance of probabilities. There are serious concerns with his credibility which make the Arbitrator unable to conclude in his favour.