Video Surveillance and Withholding Information, and Non-Compliance Results in IRB Claim Denial

February 08, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-000270 v Allstate Insurance Company of Canada - Entitlement to Income Replacement Benefits; IRBs; failure to produce income records; failure to produce medical records; not disclosing repeated attempts to return to work; video surveillance; insured fails to meet burden of proof for IRB claim

16-000270 v Allstate Insurance Company of Canada, 2017 CanLII 3144 (ON LAT)

Date of Decision: January 20, 2017
Heard Before: Adjudicator Lori Marzinotto

Overview / Introduction:

CSZ was injured in an car accident on September 18, 2015.  He was employed on the date of the Accident.  He claimed that he could not return to work as a result of the injuries he sustained from the Accident and applied for IRBs from Allstate. The Applicant, CSZ, submitted an application to the LAT seeking benefits pursuant to the Schedule.

CSZ sought IRBs of $400 per week from March 22, 2016 to August 8, 2016 and from August 17, 2016 and on-going. 

The onus of proof rests on CSZ to establish on a balance of probabilities that he is entitled to the benefits claimed.  The Applicant has failed to prove his entitlement to IRB in accordance with s.5 of the Schedule.  In addition, the Applicant is in non-compliance with s.33. On this basis the Arbitrator found CSZ is not entitled to receive IRB for the periods sought. 

Preliminary Issues:

1. CSZ initially objected to the video surveillance and report being entered into evidence for two reasons.  First, that the investigator is an expert and Allstate did not submit the required Expert Form.  Second, CSZ argued that the investigator should have been present at the hearing to testify (although he did not summons the investigator).

The Arbitrator determined that the video surveillance report would be entered as evidence as

• neither party raised any issue of prejudice to the parties
• Section 10.1 (b) of the SPPA states that a party to a proceeding may conduct cross-examinations of witnesses at the hearing reasonably required for full and fair disclosure of all matters relevant to the issues in the proceeding
• the cross-examination of the investigator was not reasonably required. Allstate submitted that the surveillance video and report did not provide opinion evidence but simply recorded and stated observations.

CSZ then withdrew his objection to the video surveillance being used.

2. Allstate objected to CSZ’s Psychological Assessment Report because an Acknowledgement of Expert’s Duty was not served as required by Rule 10.2 of the Licence Appeal Tribunal Rules of Practice and Procedure.

• CSZ submitted that Allstate has had the Report for some time and to object to the Report now is improper, amounting to an ambush to exclude relevant evidence.

The Arbitrator agreed with CSZ and allowed the Report to be admitted as the Rules states that the Tribunal’s Rules will be liberally interpreted and applied, and that they may be varied on the Tribunal’s own initiative to facilitate a fair process. To exclude relevant evidence because an Acknowledgment of Expert’s Duty form was not served as required by Rule 10.2 when it is clear from Tab 19 of Allstate’s material that it had the report since July 2016, but waited until the day of the hearing to object to its admission, would not facilitate a fair process. Further, Rule 10.4 of the Rules states that a party intending to challenge an expert’s report shall do so no later than 10 days before the hearing.

There is no evidence to support an IRB in the amount of $400 per week.  CSZ has failed to provide information that Allstate and this Tribunal requires to determine entitlement to or to calculate the amount of the IRB from March 22, 2016 forward.

In July 2016, CSZ delivered to Allstate an IRB calculation prepared by DM Chartered Professional Accountants.  On August 16, 2016 Allstate paid the IRB in the amount of $210.57 weekly for the period of September 25, 2015 to February 7, 2016, as CSZ had returned to work on February 8, 2016. Prior to August 2016, CSZ had not received any IRB payment. Allstate suspended CSZ’s benefits as CSZ failed to provide employment records, proof of income, and medical documents after several requests. The requested documents were necessary to determine if CSZ continued to be eligible for IRBs, and to calculate the amount of the IRB if eligible.

Allstate had conducted surveillance on CSZ and claims that surveillance shows CSZ working at his pre-accident place of employment as well as driving his vehicle.  Allstate submits that CSZ failed to advise it that he returned to work, and only did so when Allstate informed him that it had surveillance showing he was working. CSZ does not deny that he returned to work during the two periods he was recorded on the surveillance. However, he submits these were merely attempts to return to work, and that he ultimately found it too difficult because of his injuries, and could not continue.   CSZ maintains that he has not returned to work other than these two attempts on February 8 to March 21, 2016 and on August 9 to 16, CSZ’s second attempt to return to work occurred after the filing of this Application, and during these proceedings. CSZ’s submits that he is unable to work. The Application does not indicate that attempted to return to work on February 8 to March 21, 2016.

The Arbitrator reviewed the video evidence, the submissions,  and the law and determined that CSZ is not entitled to receive IRB, in the amount of $210.57 weekly from March 22, 2016 to August 8, 2016 and from August 17, 2016 and on-going given that he is in non-compliance with s.33. In addition, CSZ has failed to prove his entitlement to the IRB in accordance with s.5 of the Schedule.   CSZ did not prove his case for entitlement to further benefits beyond what the Insurer has paid to date.

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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.