Applicant is not forthright - testimony not reliable - IRBs denied - TT v Certas LAT 16-003055

January 23, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

TT v Certas LAT 16-003055

Decision Date:   December 21, 2017
Heard Before: Adjudicator Jeffrey Shapiro

IRBs: IRBs: applicant considered unreliable; applicant fails to make case that he has a complete inablility to return to work

Mr. TT was injured in a car accident on October 14, 2014. He applied to Certas SABs. Certas initially approved medical benefits and began paying him an IRB.  Certas then declined to approve more treatment on the basis that Mr. TT reached the $3,500 treatment limit for soft-tissue injuries, and terminated the IRB as of March 6, 2015. Mr. TT applied to the LAT.

Issues:

1. Is Mr. TT entitled to receive a weekly IRB in the amount of $400.00 per week from March 7, 2015 to date and ongoing?
2. Is Mr. TT entitled to receive a medical benefit for chiropractic services from Markham Pain Solutions requested in the following amounts:
   1. $200.00, per a plan dated December 15, 2014;
   2. $1845.20, per a plan dated January 20, 2015;
   3. $2798.40, per a plan dated February 24, 2015; and/or
   4. $2248.80, per a plan dated November 4, 2015?
3. Is Mr. TT entitled to interest on any overdue payments?
4. Is either party entitled to its costs in this matter?

Results:

1. Mr. TT has not proven his entitlement to the IRB or the four plans.

Prior to the accident, 24-year-old Mr. TT had been employed for four months as a construction worker/labourer at a concrete company. His duties included construction work, drilling, and jack-hammering, with frequent walking, standing, lifting, pushing and pulling. It was a heavy industrial job

On October 14, 2014, Mr. TT was involved in the accident. He was taken to a hospital and discharged with a diagnosis of soft tissue injuries. His pain worsened.  On October 15, 2014, Mr. TT signed an Application for Accident Benefits (OCF-1) and began physiotherapy under the MIG treatment framework. Neither party focused on the treatment at Markham – 10 visits over the course of a year. Certas submits that Mr. TT only incurred $1,490 of approved treatment. Records show five visits in the two weeks following the accident, none in November one per month from December to February, and then two visits in November 2015. On October 17, 2014, and again on November 4, 2015, and Mr. TT was issued Disability Certificates finding soft tissue injuries, sleep and anxiety disorders, and stating that Mr. TT suffered a complete inability to carry on a normal life and a substantial inability to perform housekeeping and home maintenance duties.

On October 16, 2014, Mr. TT saw his family doctor, and continued until April 12, 2016, with regular complaints of low back pain. He was prescribed medications, physiotherapy, and referred for psychological, pain management and other consultations. From October 21, 2014 until March 6, 2015, Certas paid an IRB of $400 per week as Mr. TT advised was unable to return to his pre-accident employment. Certas terminated the IRB based on IEs. Mr. TT, however, returned to work from November 4 to November 27, 2014, but did not inform Certas. He also returned in March 2015 at a different employer and March to July 2015 at the first employer, and also did not inform Certas.

Beginning in January of 2015, multiple IEs opined that Mr. TT could return to work, and that while he had some anxiety and depression, it was at a sub-clinical level.  A January 13, 2017 chronic pain assessment opined that Mr. TT’s physical restrictions, chronic pain and psychological distress are directly responsible for his lost wages and have been disruptive to Mr. TT’s employment.

Mr. TT submits that two years after the accident he continues to suffer low back pain, neck pain and psychiatric injuries, including anger and depressed mood, sleep disorder, as well as chronic pain syndrome. He submits that he has been unable to work since the accident with the exception of a few minor, isolated attempts to return driven by his dire financial situation. He also submits that several Records of Employments (ROEs) that show otherwise are inaccurate, and the surveillance video is a mere snapshot in time that is misleading and should be disregarded.

Certas submits that medical evidence establishes Mr. TT sustained minor injuries, which are treatable within the MIG and do not prevent him from working. It argues that Mr. TT has not been honest about his returns to work, and surveillance evidence shows he acted inconsistently with his claimed impairments. His claim for treatment is contradicted by his failure to use approved treatment and violates his good faith duty to treat pursuant to section 57 (2) of the Schedule.

Is Mr. TT entitled to IRBs?

The Adjudicator reviewed the law and the evidence. The Schedule provides that IRBs are payable for the first 104 weeks after the accident if the insured person suffers “a substantial inability to perform the essential tasks” of the person’s employment at the time of the accident.

In support of his claim, Mr. TT submitted his own Affidavit stating that he continues to experience low back pain and neck pain. He also submitted supporting affidavits.

Certas relies on surveillance evidence from March of 2015, several IE reports from two physicians, and various employment records. There is surveillance showing Mr. TT working for several hours lifting concrete blocks, CNR from the family doctor with no valid indicators to support residual injury or impairment, and IEs concluding that Mr. TT can return to work.

Has Mr. TT been forthright about his impairments and ability to work?

While the medical evidence is conflicting, it is immediately evident that the accuracy of all the reports depends on Mr. TT’s forthright reporting, and that much the discrepancy is due to weight the practitioners give to Mr. TT’s self-reporting.

In reviewing the submissions, the Adjudicator found Mr. TT’s self-reporting to be unreliable. He also noted that it is clear Mr. TT returned to work from November 4, 2014 to November 27, 2014, yet Mr. TT was not honest about that.  Mr. TT also returned to work in March 2015. However, he did not promptly disclose that employment and his subsequent explanations are not accurate.

Upon a full review of the evidence the Adjudicator found that Mr. TT has not established that from March 2015 onward, he suffered a substantial inability to perform the essential tasks of his pre-accident employment and thus is not entitled to IRBs.

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.