Applicant Fails to Prove His Inability to Work - 17-002792 v Certas Direct, 2018 CanLII 76432 (ON LAT)

January 30, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant Fails to Prove His Inability to Work - 17-002792 v Certas Direct, 2018 CanLII 76432 (ON LAT)

Date of Decision: April 28, 2018
Heard Before: Adjudicator Aggrey Msosa

IRB (IRB): applicant fails to meet burden of proof of his inability to work as a result of the injuries from the car accident; treatment not reasonable and necessary

The applicant was injured in a car accident on September 6, 2014 and he applied for accident benefits to the Certas Direct Insurance Company pursuant to the Schedule. He subsequently appealed the denial of the IRB and the treatment and assessment plan to the LAT.

ISSUES TO BE DECIDED

1. Is the applicant entitled to an IRB (IRB) in the amount of $319.55 per week from May 8, 2015 to September 6, 2016?
2. Is the applicant entitled to receive a medical benefit in the amount of $2,993.42 for mental health therapy recommended by Excel Medical Diagnostics in a treatment plan submitted on February 19, 2016?
3. Is the applicant entitled to interest for any overdue payment of benefits?

RESULT:

1. The applicant is not entitled to IRBs for the period May 8, 2015 to September 6, 2016.
2. The treatment plan for psychotherapy is not reasonable and necessary.

The applicant bears the burden of proving on a balance of probabilities that he is entitled to an IRB in the amount of $319.55 per week from May 15, 2015 to August 30, 2016.

At the time of the accident the applicant worked as a security guard. The test for entitlement for an IRB is set out in section 5(1) of the Schedule which provides that the applicant is entitled to an IRB if, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment.

The accident occurred on September 6, 2014. The applicant states that after the accident he did not seek emergency medical care. His first post-accident visit was to his family doctor, Dr. K on September 24, 2014 - several weeks after the accident - complaining of anxiety and lack of sleep due to the car accident. The applicant returned to work immediately after the car accident and did not miss a day of work. He continued to work full time until January 18, 2015. At that time he suffered a fall at work and injured his knee. The applicant states that his physical and psychological injuries as a result of the accident prevented him from continuing to work in his job as a security guard. Certas paid the applicant IRBs based on the pre-existing psychological injuries that were exacerbated by the motor vehicle accident.

The applicant received IRBs from January 26, 2015 to May 15, 2015. The benefits were stopped on May 8, 2015 as a result of two IE assessments which found his injuries did not meet the test for IRBs.

The applicant asserts that he met the test based on both his physical and psychological impairments. The evidence in support of a physical impairment included an ultrasound of the left and right shoulders from January 31, 2012, which shows right shoulder impingement that predates the motor vehicle accident in question. He suffered WAD 1 injuries as a result of the motor vehicle accident. The applicant asserts that the motor vehicle accident exacerbated the pre-existing shoulder injuries.

The applicant’s evidence in support of psychological injuries includes a diagnosis of generalized anxiety disorder and post-traumatic stress disorder by, a Psychiatrist, on December 2, 2014 following a referral by the applicant’s family doctor after the accident. The applicant was prescribed anti-depressants.

Certas submits that the applicant’s injuries are soft tissue in nature and maintains the validity of its denials concerning the disputed issues. Certas states that the applicant’s first post-accident visit to his family doctor, Dr. K, occurred on September 24, 2014, several weeks after the accident. The applicant was referred to a psychiatrist whom he saw on December 2, 2014 who diagnosed him with “chronic anxiety”. On the applicant’s third visit the pyschiatrist noted that his mood had improved. The applicant stopped seeing his family doctor for accident-related issues on January 26, 2015 – about 6 months post-accident.

Certas submits that the applicant underwent an in-person IE psychological examination on March 3, 2015 and was diagnosed with mixed anxiety and depressed mood. A paper report on May 6, 2015 concerning the applicant’s IRB claim and concluded that the applicant did not meet the IRB test. The applicant also had an orthopedic assessment on May 6, 2015, where he advised that he worked full time until January 18, 2015. He suffered a fall at work and injured his right knee. Certas states that the doctor noted that while there were some complaints of pain he was not able to attribute this to an impairment preventing the applicant from performing the essential tasks of his employment. The applicant’s IRBs were discontinued on May 15, 2015.

Certas submits that the applicant underwent a section 44 Physiatry insurer examination on January 2, 2016 who noted that there was no neuromuscular abnormality and therefore no impairment. The applicant had reached maximum medical rehabilitation. There was another insurer’s psychological examination on March 23, 2016 where it was noted that there were no psychological barriers to working and that the applicant did not sustain any accident-related psychological impairment. The applicant did not meet the diagnostic criteria for any DSM-V diagnoses, as his prior symptoms had abated.

Certas argues that the burden of proof rests with the applicant to prove entitlement on a balance of probabilities that there is a substantial inability to carry out his pre-accident employment duties. By the time the denial was issued, the applicant was no longer taking any prescription medications for his mood or pain, he was not receiving treatment with his OHIP funded psychiatrist and he was not seeing his family doctor for any accident-related complaints. The applicant told Dr. Day that there was no psychological barrier to returning to work and that his anxiety and frustration was due to his inability to secure employment.

The Adjudicator determined that on the basis of the applicant’s evidence he has not proved on a balance of probabilities that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment as a security guard. The applicant has not met the burden of proving his entitlement.

For the above noted reasons, this application is dismissed.

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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.