Credibility and Failure to Provide Evidence Results in Denial of NEBs - MH and Certas 16-003657 v Certas Direct Insurance Company, 2017 CanLII 59506 (ON LAT)

October 30, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MH and Certas 16-003657 v Certas Direct Insurance Company, 2017 CanLII 59506 (ON LAT)

Date of Decision: September 8, 2017
Heard Before: Adjudicator Rebecca Hines

NEBs: applicant fails to show that pre-accident life is significantly altered to qualify for NEBs; applicant does show that chiropractic treatment is reasonable an necessary; applicant suffers from credibility issues

M.H. was injured in a car accident on July 3, 2014 and applied for SABs. When the application was denied she applied to the LAT for dispute resolution.

M.H. argues that she is entitled to the NEB as she suffers a complete inability to carry on a normal life, and that the medical benefit is reasonable and necessary as she still suffers from pain as a result of her accident related impairments and was diagnosed with chronic pain syndrome. M.H. relies on a disability certificate dated August 14, 2014, prepared by a chiropractor, the clinical notes and records of her family doctor and the reports of a psychotherapist dated April 1, 2015 and a physiatrist dated December 12, 2016 to support her position. 

Certas submits that M.H. has not met her evidentiary burden in establishing that she meets the complete inability test for NEBs, and Certas argues that that the IEs support the position that she does not suffer a complete inability to carry on a normal life and that she has reached maximum medical recovery from her physical injuries caused by the accident.  Therefore, the treatment plan for chiropractic services is not reasonable and necessary.  Certas relies on the IE to support their position.

Issues:

1. Is M.H. entitled to receive a non-earner benefit in the amount of $185.00 per week from January 2, 2015 to date and ongoing?
2. Is M.H. entitled to receive a medical benefit in the amount of $2,480.64 for chiropractic services, recommended in a treatment plan dated August 10, 2015?
3. Is M.H. entitled to interest on any overdue payment of benefits?

Result:

1. M.H. is not entitled to a non-earner benefit.
2. M.H. is entitled to a medical benefit in the amount of $2,480.64 for chiropractic services, recommended in a treatment plan dated August 10, 2015.
3. M.H. is not entitled to interest as the treatment has not been incurred.

The Arbitrator reviewed the law, evidence and provided the following conclusions.

The Arbitrator found M.H. is not entitled to payment of a non-earner benefit because although the reports she relies on address some of her limitations with respect to her post-accident activities, it failed to analyse her pre-accident activities and does not comment on the non-earner benefit or state that she suffers a complete inability to carry on a normal life.  Furthermore, the physiatry assessment submitted by M.H. did not support entitlement to a non-earner benefit.  The medical records and reports submitted by M.H. fell short of proving her entitlement to the non-earner benefit.

M.H. argues that the Court of Appeal set out the six factors to determine whether or not an individual has suffered a complete inability to carry on a normal life, M.H.’s submissions and affidavit fail to apply any of these factors with respect to her case.  There was insufficient evidence with respect to her pre and post-accident activities.   The Arbitrator found the descriptions of M.H.’s pre and post-accident activities too general and lacking in detail. In addition a surveillance evidence submitted by Certas showed M.H. over a three-day time period taking her son to the bus stop, going to the bank, grocery shopping, shopping at the mall and carrying multiple bags from the store to the car.  The date of the surveillance was February 3, 4 and 5, 2017, less than a week from when her affidavit was sworn.  While M.H. is not seen driving in these videos, the videos depicting her shoe shopping at the mall does not portray an individual suffering from a complete inability to carry on a normal life.  While shopping for shoes, she is seen bending over multiple times, and kneeling on the floor on one knee and standing up with ease.

The Arbitrator found that the surveillance evidence raises credibility issues which are particularly important when making a determination with respect to a non-earner benefit – especially in a written hearing.  Regardless of the surveillance evidence, M.H. has not met her onus of proving on a balance of probabilities that she has suffered a complete inability to carry on a normal life as a result of the accident.  Therefore, M.H. is entitled to a non-earner benefit.

The Arbitrator found M.H. provided sufficient medical evidence to demonstrate that she is still suffering from physical pain as a result of her accident related impairments despite the fact that three years has passed since the accident.  On the basis that M.H. is still suffering from her accident related impairments as noted in all of the clinical notes and records and reports submitted the treatment plan for chiropractic services is reasonable and necessary.

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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.