Lack of Evidence and Failure to Follow Procedure Leads to Denial of IRB Claim - LAT 16-000097/AABS

May 22, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

D.D.D.  v  RBC                      LAT 16-000097/AABS

IRBs: rules of procedure; lack of corroborating evidence leads to denial of IRB claim

Date of Decision: March 31, 2017
Heard Before: Adjudicator:  Ruth Gottfried

REASONS FOR DECISION AND ORDER

D.D.D. was hurt in a car accident on January 4, 2015.  She applied for and received benefits under the SABS. RBC Insurance approved benefits for D.D.D. until it received assessments an orthopaedic surgeon IE and a psychologist, at which time it denied the remaining benefits.

At the outset of the hearing, both RBC and D.D.D. advised me that all benefits in dispute had been resolved with the exception of IRBs.  RBC raised the issue that several documents remained outstanding from the requested productions of D.D.D., including, but not limited to, a decoded OHIP Summary as well as D.D.D.’s complete EI file.  RBC further put forward that H & A, a forensic accounting firm, had requested additional documents from D.D.D. that were not provided.  The Arbitrator ruled that any documents that had not been produced on time prior to the hearing could not be relied on at the hearing.

ISSUE:

1. Is D.D.D. entitled to an income replacement benefit in the amount of $400.00 per week from August 1, 2015 to March 29, 2016?

RESULT:

1. D.D.D. is not entitled to an income replacement benefit from August 1, 2015 to March 29, 2016.

POSITION OF THE PARTIES:

D.D.D.’s position is that she has made efforts to return to work but could not sustain employment due to her post-accident injuries. RBC’s position is that D.D.D. has applied for and obtained post-accident employment, and that her inability to hold onto these jobs is for reasons other than post-accident injuries.

EVIDENCE:

The Family Doctor’s testimony was clear and candid.  He advised that he has been treating D.D.D. for 18 years and considers that he has a close relationship with her.  He advised that he did not recall D.D.D. making any complaints prior to the accident regarding her back or pelvis.  Prior to the accident, he recalls her complaints having to do with abdominal pains, which may have possibly been related to the kidney cancer that was subsequently detected. After the accident, he noted that D.D.D. “referenced back and shoulder problems” and she [D.D.D.] advised his colleague that she had been in another motor vehicle accident on February 1, 2015.

When questioned by RBC whether or not he was able to assess what [complaints] were from the accident and what was not, the doctor stated that “it’s hard to tell.”  “Depression is not something you can put a number to like diabetes – and different people react different[ly] – I don’t think it’s fair for me to give a percentage.” In terms of psychological issues, the doctor testified that both of D.D.D.’s parents have major medical problems and she spent a lot of time looking after them.  He further advised that, prior to the subject accident, her “marriage was not great” and it was an ongoing issue.  Although he prescribed anti-depressants for D.D.D., he responded “no” to the question:  Did she make any specific [psychological] complaints post-accident with regard to the accident?” He noted that D.D.D. had cancer and a partial nephrectomy on August 26, 2015 – approximately 6 months after the accident.  He also advised that he was “really surprised that [D.D.D.] was not working.”

The Arbitrator excluded some medical testimony as they were given too late and without notice to RBC two days before the hearing.  Material required for comment that is sent to a witness and opposing party within two days of a hearing is unreasonable and borders on sharp practice. 

D.D.D. testified on her own behalf.  Understandably, she was demonstratively upset by the proceedings and several breaks were held to allow her to regain her composure. She testified that the pain resonates in her back every day and about 4-5 months ago, it got worse and moved into her hip and lower leg.  It seems that the “pain is trying to control her life”.  She is having a harder time hiding it now. When asked to elaborate on the term “hiding” she clarified that “it makes me look so old and handicapped”.  “I can’t function as fine as I look.  I don’t like admitting and accepting I’m not well.  I don’t look like I’m ill but I am – I’m in pain – I’m exhausted.”

D.D.D. testified that she returned to full time work four days after the subject accident.  She advised that she did not directly tell her employer about her accident or injuries, but a colleague did.  According to D.D.D. the colleague wrote an email advising the employer that D.D.D. was taking pills but it would not interfere with her work.  D.D.D. was laid off from her job on January 29, 2015 and the reason given by the employer in the OCF-2 was that it was a “temporary layoff” and the date of return to work was October 5, 2015.

D.D.D. found another job doing similar work and she began on April 4, 2016. D.D.D. testified that prior to the subject accident, she had had jobs with similar duties, each lasting less than a year and each time she was laid off and received EI. RBC asked D.D.D. if when applying for EI post-accident, she had “ticked off the box that said you were actively looking for work”.  D.D.D. advised that she had ticked the box, because she was actively looking for work.

D.D.D. advised a treating doctor that she was in a subsequent motor vehicle accident on February 1, 2015, when the car she was driving was rear ended.  D.D.D. reported to Dr. Browne that the “physical pain and emotional difficulties from the subject motor vehicle accident [of January 4, 2015] were exacerbated by this accident.” None of the treating physicians determined that D.D.D. suffered from a substantial inability to perform the essential tasks of her pre-employment as a result of injuries sustained in the subject motor vehicle accident.

THE LAW:

The Schedule lays out a two-part test to determine eligibility for IRB. The insured must as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

Neither party is questioning that D.D.D. was employed at the time of the subject accident, or that as a result of the accident and within 104 weeks of the accident she suffered a substantial inability to perform the essential tasks of that employment.

The burden of proof rests with D.D.D. to demonstrate that she meets both parts of the eligibility test and that she continues to suffer a substantial inability during the course of the benefit payment period.

ANALYSIS:

On review of the evidence and testimony the Arbitrator determined that D.D.D. has failed to prove her entitlement to IRB in accordance with s.6 of the Schedule.

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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.