Applicant shows inability to work and is awarded IRBs - Fails to show post-104 disability - LAT 16-001905 v Certas

February 01, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-001905 v Certas

Decision Date: November 21, 2017
Heard Before:  Adjudicator Catherine Bickley

ENTITLEMENT TO IRBs and TREATMENT: applicant shows that there was a disability that prevented work and is entitled to IRBs; applicant fails to provide income tax returns or records of business income;

The applicant was involved in car accident on September 5, 2014 and sought benefits pursuant to the Statutory but when Certas Home denied IRBs and five treatment and assessment plans the applicant appealed to the LAT.

Issues:

1. Is the applicant entitled to receive an income replacement benefit in the amount of $95.12 (or other amount) per week from September 12, 2014 to date and ongoing?
2. Is the applicant entitled to receive payment for the following medical benefits:
   1. $37.23 for chiropractic services as outlined in a September 22, 2014 OCF-18?
   2. $2,342.78 for chiropractic services as outlined in a November 28, 2015 OCF-18?
   3. $13,903.20 for a chronic pain treatment program as outlined in an August 10, 2016 OCF-18?
3. Is the applicant entitled to receive payment for the following costs of examination:
   1. $1,670.00 for a physiatry assessment as outlined in an April 22, 2016 OCF-18?
   2. $2,200.00 for a chronic pain assessment as outlined in a May 2, 2016[1] OCF-18?
4. May the applicant add the issue of an award under section 10 of Regulation 664 enacted under the Insurance Act? If so, is she entitled to such an award?
5. Is the applicant entitled to interest on any overdue payment of benefits?
6. Is the applicant entitled to costs pursuant to Rule 19?

RESULT

1. The applicant is entitled to IRBs of $95.12 per week from September 12, 2014 to December 31, 2014.
2. The applicant is not entitled to payment for the chiropractic treatment outlined in the September 22, 2014 and November 28, 2015 OCF-18s. She is barred from litigating entitlement to the chronic pain treatment program outlined in the August 10, 2016 OCF-18.
3. The applicant is entitled to the costs of examination outlined in the April 22, 2016 OCF- 18 and the May 2, 2016 OCF-18.
4. The applicant may add the issue of an award under section 10 of Regulation 664 enacted under the Insurance Act. She has not established entitlement to such an award.
5. The applicant is entitled to interest on all benefits found owing.
6. The applicant is not entitled to costs pursuant to Rule 19.

The applicant is seeking IRBs from September 12, 2014 to date and ongoing. To determine whether she is entitled to IRBs for all or part of this period, the Arbitrator must determine whether during the first 104 weeks after the accident and as a result of the accident she suffered a substantial inability to perform the essential tasks of her pre-accident self-employment, and whether after the first 104 weeks she suffered a complete inability to engage in any employment or self- employment for which she is reasonably suited by education, training or experience.

The applicant was a house cleaner, who had been self-employed for 16 years. She suffered severe headaches, upper back injuries and a hurt left shoulder. Her sleep was disrupted by the pain. Her family doctor noted the day of the accident that she likely had whiplash and cervical radiculopathy. A disability certificate prepared by her chiropractor on September 22, 2014 lists a number of injuries including post-concussion syndrome and radiculopathy. The expected duration of disability is nine to twelve weeks. She also indicates that while the applicant is substantially unable to perform the essential tasks of her pre-accident self- employment, the applicant is able to return to work on modified hours and/or duties. Her family doctor prepared a disability certificate indicated 5-8 weeks of inability to work.

The applicant testified that before the accident she cleaned seven to eight houses per week. She took one week off following the accident then returned to work part- time. She was able to do some but not all of the tasks she had previously done and worked more slowly than before the accident.

The Arbitrator accepted the applicant’s submissions that, at least up until the end of 2014, she was able to clean only one rather than two houses per day and was not able to complete all of her usual tasks. The ability to work for only half of one’s usual work day constitutes a substantial inability. Accordingly, the Arbitrator found that the applicant was substantially impaired until December 31, 2014. The applicant returned to work full-time in January 2015. However, she has not established that this inability continued after December 31, 2014, and therefore she has not established that she met the post-104 week test.

Certas submits that the applicant should not be permitted to put the amount of the IRBs in issue. It asks that the Arbitrator draw an adverse inference from her failure to produce relevant financial information, specifically (as agreed at the case conference):

• Her income tax return from 2015
• Any records pertaining to her income loss in 2014 and 2015
• Documents used to prepare her 2014 income tax return

None of these documents were produced to Certas or submitted to the Tribunal. In requesting that I draw an adverse inference from this failure. The applicant argues that the 2015 income tax return is unnecessary as she had returned to full-time work as of January 2015. She has offered no explanation for her failure to produce the other documents. The Arbitrator drew an adverse inference from her failure to produce the information.

The applicant has not provided reliable information to persuade the Arbitrator that the weekly amount of IRBs should be higher than the $95.12 that Certas paid her in September 2014. Thus, the appropriate amount of IRBs is $95.12 per week.

The Arbitrator reviewed the treatment plans and made determinations based on the evidence. Some of the claims were for amounts that exceeded approved limits, and others were for treatment plans subsequently withdrawn by the providers.

The applicant was barred from litigating the August 10, 2016 OCF-18 as she did not attend scheduled s.44 physiatry and psychiatry assessments to assess her entitlement to this benefit.

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.