Facebook and Surveillance Images Do Not Show If Pain Is Present During Activity

January 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

L. W. and The Co-operators General Insurance Company; Entitlement to benefits; applicant meets burden of proof that treatment is reasonable and necessary; video surveillance and Facebook images deemed to not capture whether pain exists during activity.

Date of Decision: December 1, 2016
Heard Before: Adjudicator Chris Sewrattan

L. W. was injured in two car accidents. The first was on November 29, 2013 when she was rear ended by a bus. As a result of the accident, L.W. suffered a number of injuries, including depression and anxiety, a head injury which resulted in post-concussion symptoms, and disc herniation. The second car accident was on June 19, 2015 when L.W. was rear ended by another car. The second accident aggravated the disc herniation caused by the first accident.

L.W. applied for and received benefits under the Schedule for both accidents. The Co-Operators paid for rehabilitation benefits initially, however, since May 2014, The Co-Operators has denied payment for six treatment plans (medical benefits) related to chiropractic and massage therapy treatment. L.W.’s disputed claims for medical benefits for both accidents are joined in the Application before the Tribunal.

Issues in Dispute:

L.W. disputes Co-Operators denial of payment for the following benefits:

1. $447.20 for chiropractic services for a treatment plan submitted on May 28, 2014;
2. $560.00 for massage therapy for a treatment plan submitted on July 8, 2014;
3. $451.24 for chiropractic services for a treatment plan submitted on September 9, 2015;
4. $650.43 for ‘other goods and services of a medical nature’ (massage therapy) for a treatment plan submitted on October 22, 2015;
5. $521.34 for ‘other goods and services of a medical nature’ (massage therapy) for a treatment plan submitted on October 1, 2015; and,
6. $2,456.20 for chiropractic services for a treatment plan submitted on March 29, 2016.

Result:

1.  L.W. is entitled to payment for all six of the treatment plans for medical benefits set out above.

The only issue before the Tribunal is whether each disputed treatment is reasonable and necessary. Co-Operators focused much of its submissions on the argument that L.W.’s injury is both minor and lacks objective evidence. To determine L.W.’s entitlement to the disputed medical benefits, the Arbitrator was left to determine whether they are reasonable and necessary.

L.W. must prove on a balance of probabilities that each of the disputed medical benefits is reasonable and necessary. To achieve this end, L.W. provided extensive medical evidence to support her position that treatment was necessary to prevent regression of her condition. Co-operator contested the evidence that regression would occur without treatment.

Co-Operators indirectly challenges the necessity of the medical benefits, and raises a causation issue, submitting that L.W. has failed to prove that she suffers from an impairment as a result of the accident that necessitates the disputed treatment. In support of this submission, Co-Operators relies on a medical report from October 14, 2015 which concludes that L.W. has sustained uncomplicated soft tissue injuries warranting no further facility based treatment.

After reviewing the evidence the Arbitrator determined that he disagreed with this submission, concluding that he is satisfied on a balance of probabilities the accidents caused a physical impairment which necessitates the six disputed treatment plans for medical benefits.

The Arbitrator then noted the necessity of a benefit is not a blank cheque for treatment, regardless of whether its cost is within or outside of the Minor Injury Guideline. A benefit must be reasonable with respect to its goal, its ability to achieve that goal, and cost.

After reviewing the evidence the Arbitrator determined that each of the proposed treatments is reasonable in light of L.W.’s impairments.

Co-operators submitted surveillance and images from Facebook showing L.W. doing physical tasks. The Arbitrator determined that the images do not, and indeed cannot, capture the sensation of pain that L.W. feels when she performs these movements. L.W. made this counter-submission and the Arbitrator found it convincing. As a result, the surveillance and Facebook images do not diminish the credibility of L.W. or her argument. Her ability to prove her entitlement to each of the six rehabilitation benefits remains.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.