Applicant Entitled to Limited IRBs Based on Conflicting Evidence - Considon and TD

December 12, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Condison and TD General

Decision Date: October 13, 2017
Heard Before: Adjudicator Lynda Tanaka

ENTITLEMENT TO BENEFITS: contradictory evidence; misleading evidence; conflicting tax information; applicant fails to make a full case for IRBs and is entitled to limited benefits based on tax records

Neil Condison was injured in a car accident on August 1, 2013 when a car suddenly pulled in front of him and stopped. He rear ended the SUV in his Honda Civic. The damages to his car were over $5000. His airbags did not deploy. He sought accident benefits from TD and when mediation failed he applied to FSCO.

Issues:

1. Is Mr. Condison entitled to IRBs for the period August 8, 2013 to date at the rate of $368.15 per week?
2. Is Mr. Condison entitled to medical benefits as follows: a) an OCF-18 dated August 30, 2013 in the amount of $3,087.28; b) an OCF-23 dated September 30, 2013 in the amount of $990.00, being the unapproved balance of the total of $2,200.00; and c) an OCF-18 dated December 6, 2013 in the amount of $2,966.60?
3. Is Mr. Condison entitled to the cost of an x-ray as claimed in the OCF-18 dated February 25, 2014 in the amount of $760.00?
4. Is Mr. Condison entitled to interest for the periods of unpaid benefits?
5. Is Mr. Condison entitled to his expenses for the arbitration?
6. Is Mr. Condison entitled to his expenses incurred during the period between the date of the Application for Arbitration and the payment of the outstanding claims for benefits, other than those claimed in issue 2 and 3?
7. Is TD entitled to its expenses for the arbitration?

The parties resolved a number of the issues that were included in the Application for Arbitration filed.  Mr. Condison wishes to have an order as to the entitlement to and calculation of his income replacement benefit conditional on his refiling his 2013 tax return.  He also seeks a declaration that the medical benefits claimed above are reasonable and necessary but that TD’s obligation to pay is conditional on a future determination of whether or not Mr. Condison was catastrophically injured.  TD opposes both conditional orders.

Result:

1. Mr. Condison is entitled to income replacement benefits for the period of August 8, 2013 to October 30, 2013 at the rate of $281.31 per week.
2. Mr. Condison is not entitled to the medical benefits claimed as follows: a) an OCF-18 dated August 30, 2013 in the amount of $3,087.28; b) an OCF-23 dated September 30, 2013 in the amount of $990.00, being the unapproved balance of the total of $2,200.00; and c) an OCF-18 dated December 6, 2013 in the amount of $2,966.60.
3. Mr. Condison is not entitled to the cost of examination for an x-ray claimed in the amount of $760.00.
4. Mr. Condison is entitled to interest on unpaid benefits, including income replacement benefits and any medical benefits that TD agreed to pay after the Pre-Hearing conference in this matter prior to the Hearing.  If the parties have any difficulties with the calculation of interest in accordance with my findings, they may ask for a reattendance to deal with the issue.

Mr. Condison testified that, on the day of the accident, he experienced soreness in his neck and the left side of his body, particularly the mid and lower back, and that his hips were sore. Mr. Condison contacted his family doctor’s office on the day of the accident and went to the Rouge Valley Hospital later that day.  He testified that it was very busy in the emergency department and that he only saw a nurse who sent him home.  The hospital records show he was seen by a doctor shortly after 6:00 p.m. and he was complaining of neck pain.  He was diagnosed with whiplash and neck strain.  He was prescribed a muscle relaxant and pain reliever.  Mr. Condison first saw his family doctor concerning the accident on August 27, 2013 by which time he was being treated by with chiropractic, massage, TENS and acupuncture treatment.

Mr. Condison submitted several claims to TD and OCF-1, OCF-2, and OCF-3 as support. On November 13, 2017 he filed an OCF 18 for treatment outside the MIG.

TD had an IE conducted reporting that Mr. Condison suffered a minor injury falling into the MIG.  TD relied on the assessment of a chiropractor who provided a letter and chiropractic report dated January 31, 2014, and an Addendum Report dealing with whether or not Mr. Condison’s injuries fell within the MIG.

Mr. Condison underwent extensive evaluations, and medical testing from December 2013 onward concluding deterioration of his back, mild to moderate spinal stenosis, deterioration and degenerative spinal issues, spinal instability, and some “degenerative arthropathy and pre-existing pathology … present”. In the fall of 2014 Mr. Condison was off work with cervical spondylosis.

An MRI of the cervical spine was done on December 8, 2014 and the report was mild to moderate spinal stenosis, and of most importance was a report of possible minimal left C7 radiculopathy. Mr. Condison was seen in the Neurophysiology lab of St. Michael’s Hospital on March 10, 2015 for an evaluation for a possible left cervical radiculopathy. The report rendered the opinion that the nerve conduction studies revealed some non-specific changes “which may represent the minimal manifestations to a left C7 radiculopathy”, and that “we suspect [Mr. Condison] has a nearly resolved mild left C7 radiculopathy.  Given his improving symptoms and overall neurological status, we would recommend conservative treatment at this time.” Future surgery was contemplated in the event “things worsen in the future” but no follow up appointment was arranged.

Mr. Condison testified that he did return to his desk job after the accident as an account executive selling telecom services, but he was only able to work about 10 hours in total due to the pain from his injuries.  He has tried to work at other jobs and has had great difficulty because of the pain in his back and neck.  More recently, he has numbness and tingling in his left hand and his hip has caused him considerable discomfort.  He testified that his work required him to travel to visit clients at their places of business and this was very difficult for him, given the traffic in the GTA.  Even trips within the GTA could be one hour or more, one way, and he has difficulty sitting for that length of time.  He also expressed difficulties with commuting to work via transit or by a long car ride.

Mr. Condison testified that he continues to experience pain in his neck, left arm and back, and one year after the accident, he developed tinnitus and numbing and tingling in his left arm, all of which he attributes to the accident injuries.  He started complaining of the hip pain in 2015.  Prior to the accident, there is no record of neck pain, or tingling or numbness in his left arm or hand, or of tinnitus or migraines, or of the hip pain.  Mr. Condison attributes them all to the accident.

Clinical notes and records indicate visits concerning the motor vehicle accident on August 27, September 17 and December 10, 2013, the period during which Mr. Condison was no longer at his pre-accident employment and he began his employment at another employer.  Mr. Condison is recorded as doing physiotherapy and improving with no tingling, numbness or decreased sensation. He was reassessed by in November 2014 and the notes indicated that the “pain and numbness is reducing day by day – feeling much better than before…every day activities are okay now, tenderness is almost nil”.

Mr. Condison underwent a Psychological Assessment for Treatment Planning conducted two and half years after the accident, which concluded that his presentation was consistent with features of an Adjustment Disorder with Depressed Mood.  The report recommended cognitive behavioural psychotherapy of 8 sessions to address his adjustment disorder, mild depression and pain symptoms. Mr. Condison was referred to a chronic pain specialist in 2017 because of the ongoing pain and resistance to treatment, despite receiving extensive treatment under accident benefits.  The chronic pain specialist opined that Mr. Condison suffers from chronic pain as a result of the accident, he was clear that the degeneration he observed in the imaging of the neck vertebrae was consistent with a prolonged period of degeneration and that Mr. Condison’s symptoms are consistent with the result of the accident trauma on the neck, thereby bringing on the pain symptoms in the neck and the tingling and numbness in the left arm.  Mr. Condison’s pain condition is moderate to severe, complicated by depression and poor sleep, as a direct consequence of the accident. The eport recommended a sleep clinic, psychologist/psychiatrist support, rehabilitation, and job modification/functional assessment. They referred Mr. Condison to an Ear Nose and Throat Specialist who conducted auditory tests with respect to his tinnitus.    No direct causal link between the tinnitus and the accident was established in the evidence.

Mr. Condison was assessed by an orthopedic surgeon who concluded that Mr. Condison suffered chronic pain. 

TD obtained a Multidisciplinary Report dated August 29, 2014 concerning the income replacement benefits claim and on the basis of the conclusions of this Multidisciplinary Report, TD discontinued Mr. Condison’s income replacement benefits.

An Independent In-Home Assessment dated June 18, 2016[41] was prepared by Phyllis R. Belle, RN, on retainer by TD.  Assistance was recommended due to his impaired ability to push, pull, lift, carry, stoop and crouch, reduced range of motion in the lumbar area, and decreased strength in his left arm and hands.  There is no claim for attendant care in this arbitration, but the physical limitations identified are of assistance in isolating the functions that were impaired for the purpose of assessing the benefit claims in this matter.

An OCF-19 was completed on behalf of Mr. Condison in the spring of 2016 and submitted to TD claiming that Mr. Condison suffered catastrophic impairment.  The conclusion of the various studies undertaken was that Mr. Condison was not catastrophically impaired.

TD takes the position that Mr. Condison’s employment records and tax records are not consistenet and that he did not apply for IRBs. The Arbitrator reviewed the extensive income and tax records and found that none of the tax returns refer to the companies listed on the OCF-3 dated in August 2013.  His highest earning year of the years for which tax returns were provided was in 2015 although $14,221.18 was attributed to the SunLife wage loss replacement plan.  There is no evidence to support the earnings level declared in the OCF-2.

Also, Mr. Condison disclosed to a vocational counsellor that he had been employed in 2013 between January and May as a Sales Executive/Account Manager for a base salary of $70,000 per year plus commissions. He said he left the company when it closed down.  No such company is listed in either his 2012 or 2013 tax returns and no income at the level he reported to Mr. Martino is reported on his tax return for either year, or even something that represented 5 months at that base salary level.  Mr. Condison blamed his failure to file tax returns on the pain he has suffered since the accident.  He acknowledged that he had not included in his declared income for 2013 the income from E- Mobile which had been the basis in the OCF-2 for the claim for IRBs.  He undertook to file an amended return for 2013 if a conditional order were made for IRBs calculated on that basis. Mr. Condison Failed to report an ongoing cliam for IRBs to his STD provider. He failed to Rport benefits to TD from his STD provider.

Employment records from May 2014 show Mr. Condison took a leave of absence from work, was the required to apply for STD. He failed to return to work despite his doctor’s note confirming he could, and failed to support his claim of Dengue Fever with a note. He took another leave of absence in February

The evidence of income provided by Mr. Condison is inconsistent and unconvincing for these reasons.  There is conflicting evidence as to when he left his E Mobile employment, but it is no later than August 22, 2013. He told TD that he could not return to E Mobile because the company had closed when in fact it had only moved. Second, contrary to his assertions in his claim that the accident prevented him from working, he secured other employment within three months of the accident, work of essentially the same kind - sedentary office work - as he did prior to the accident.

Mr. Condison has failed to meet his obligation to provide the details of his income and work experience.  When asked for details of his work experience on the stand, he testified only in vague generalities, being unable to recall start and finish dates, income information, or specifics of the job requirements.  The information on his tax return for 2012 provides T4 slips for two companies, neither of which was disclosed to the occupational experts retained to support his claim for IRBs.  There are five different employers disclosed on the 2013 T1 but he did not disclose on his CRA filing, the sixth job, the one at E Mobile which was the basis for his IRB claim.  In neither 2012 nor 2013 did he earn more than $30,000 per year but the information he gave to the occupational experts was that he was making $50,000 to $70,000 per year.  He also presented himself as employed by companies in the period of 2005 forward for periods of some years but the information on those companies was not disclosed where appropriate with respect to the accident benefit claims.  The information he gave in evidence and to his Insurer and to the experts was inconsistent, incomplete and not persuasive.

Finally, Mr. Condison obtained and kept IRBs even though he was employed full-time or receiving collateral benefits.  Mr. Condison was paid IRBs in a lump sum for the period since the accident in August 2013 to March 2014 and those benefits continued on a bi-weekly basis until the fall of 2014.  As can be seen in the table below, he was employed for substantial portions of that period or was entitled to or obtaining short-term disability benefits.

After reviewing the large amount of medical evidence, employment records and tax records, and the law the Arbitrator determined that Mr. Condison had only proven his eligibility for IRBs for a limited period of time at the rate reflected.

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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.