January 21, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Aviva LAT 17-001822
Decision Date: December 11, 2017
Heard Before: Adjudicator Rebecca Hines
IRB and ASSESMENT COSTS: applicant makes case for chronic pain diagnosis; applicant has reasonable and necessary need for treatment; insurer does not make case against applicant with limited video surveillance over eight day period
The applicant was involved in a car accident on April 28, 2016. She applied for accident benefits to Aviva pursuant to the SABs. When Aviva denied the applicant’s entitlement to benefits and she filed an application with the LAT.
- Is the applicant entitled to receive a weekly IRB of $290.50 per week, from February 5, 2017 to date and ongoing denied January 26, 2017?
- Is the applicant entitled to an examination expense in the amount of $2,486.00 for a chronic pain assessment denied by Aviva on July 25, 2017?
- Is the applicant entitled to interest on the overdue amounts?
- The applicant is entitled to receive a weekly IRB of $290.50 per week, from February 5, 2017 to date and ongoing less any post- accident income;
- The applicant is entitled to an examination expense in the amount of $2,000.00 for a chronic pain assessment denied by Aviva on July 25, 2017;
- The applicant is entitled to interest on the overdue amounts for the income replacement benefit; and
- The applicant is not entitled to interest on the examination expense as it has not been incurred.
The applicant is thirty years old and has two children who at the time of the accident were four and a half and one year and four months old. Prior to the accident, the applicant was independent in caring for her two children. The applicant did not have any pre-existing physical or psychological issues that required medical attention.
The Schedule provides that an insurer shall pay an IRB if the insured person:
- Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
Both parties agree that the applicant was employed as a sales representative at the time of the accident and had been employed there for approximately 8 years. Further, they agree that she sustained an impairment within 104 weeks of and as a result of the accident. Aviva paid the applicant an IRB from May 5, 2016 to February 5, 2017. What is in dispute is whether the applicant continued to suffer a substantial inability to perform the essential tasks of her employment from February 5, 2017 to date.
The Arbitrator reviewed the evidence to determine that essential tasks of the applicant’s employment, and whether she is substantially unable to perform the essential tasks of her employment? Based on the evidence presented that Arbitrator found the applicant suffers a substantial inability to perform the essential tasks of her job as a sales representative.
The Arbitrator then reviewed the medical evidence. The Arbitrator preferred the independent assessment of chronic pain dated August 28, 2017 over the reports of IE assessors an orthopaedic surgeon and a psychologist both dated November 1, 2016. This was based on the fact that the examination and report of the independent assessor was thorough based on a full paper review and clinical interview, physical exam and testing. The Report was thorough, and testimony was consistent with the evidence submitted by the applicants.
The Arbitrator noted that the IE found the applicant sustained an impairment as a result of the car accident, but the conclusions of the reports were inconsistent and lacking analysis.
Aviva submitted video surveillance evidence which showed the applicant driving and running various errands over the course of four days in June 2017 and four days in September 2017. Another surveillance video taken on September 9, 2017 shows the applicant going to the beer store and loading a trolley of five or more cases of beer into the trunk of her car and then unloading them from her trunk and delivering them to the restaurant. The private investigator with Intrepid Investigations testified that he conducted surveillance of the applicant over an eight day period. In total, he performed fifty six hours of surveillance. He confirmed that out of the fifty six hours of surveillance the applicant is seen on camera for less than one hour. These statistics are confirmed in his investigative report. The Arbitrator did not find this brief snapshot of the applicant’s post-accident activities disproves that the applicant does not suffer a substantial inability to complete the essential tasks of her employment.
In response to surveillance the applicant testified that her stepmother had been arrested by Immigration authorities, which is why she needed to help out at the restaurant. She was the only person available to go to the beer store and she experienced pain afterwards. To corroborate her evidence the applicant submitted an Order of Detention and Notice to Appeal issued by the Immigration and Refugee Board of Canada dated September 18, 2017.
On this basis the Arbitrator found that based on a balance of probabilities the applicant has a substantial inability to complete the essential tasks of her employment as a sales representative with Telus.
As the Arbitrator accepted the evidence of chronic pain diagnosis, the Arbitrator determined that the assessment of chronic pain is reasonable and necessary.