Open Access Invitation: We Are In This Together
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Volume. 4 Issue. 25 – June 24, 2020
Surveillance Determinative Despite Inherent Limitations
Trump Card? – Considering a claim for NEB, the Tribunal, in 18-007868 v Aviva, stated that “Surveillance evidence is not the ‘trump card’ that some parties may believe it to be.” However, “this is not to say that surveillance is meaningless. Quite the opposite”, as the decision maker must weigh “surreptitious recordings” with the totality of the evidence. While noting that “there could be a reasonable explanation for the seemingly smooth and effortless actions in this video”, in this case the surveillance “raises many serious questions about the applicant’s post-accident activity levels—questions that have allowed me to conclude that the applicant has not met her onus to demonstrate entitlement.”
A major point raised by the Applicant was that she can temporarily perform some of her pre-accident tasks with the assistance of localized pain injections, as “this fleeting normalcy is worth the pain of these regular injections.” Unfortunately, at least for the Applicant’s case, was the fact that the surveillance predated her first pain injection by several months. Further, while the Applicant argued that she had “good days and bad days”, the Tribunal noted that “since the surveillance shows the applicant engaging in an assortment of activities on half of the random days she is observed, I cannot conclude that she is continuously prevented from engaging in a substantial number of her pre-accident tasks.”
The Internal Struggle – Considering a claim for IRB, the Tribunal, in 17-006475 v Aviva, found “most problematic” that surveillance contradicted medical evidence suggesting that the Applicant was unable to work. She was seen “doing many routine things that I suspect are common to convenience store employees”. The Tribunal however agreed that the surveillance was “a brief snapshot in time that does not necessarily capture the pain or psychological impairments that she is experiencing while working.” Further, “she may very well have a headache or be struggling with anxiety while at the store. The surveillance does not capture internal struggle…”
Notwithstanding the purported limitations, the surveillance was found to evidence the Applicant’s “seeming ability to do many, if not all, of the routine tasks identified in her resume and what she claims she could not do in her self-reporting to various assessors”. The Applicant did not explain why or how she was able to work during a period of alleged functional limitation, “instead focusing on how the footage does not adequately capture her struggle.” The Tribunal, noting that “the footage is not particularly damning”, nevertheless found it difficult to reconcile claims of substantial inability with the surveillance footage.
Slam Dunk – In 19-002266 v Dominion, the Respondent pointed the Tribunal to surveillance evidence it relied on in support of its position that the OCF-18s were not reasonable and necessary. The Tribunal accepted this as “a reliable source of evidence”, going so far as to say that the rationale for finding the OCF18’s neither reasonable nor necessary “will be outlined in the ‘Surveillance’ section below.”
The surveillance “appears to confirm that [the Applicant] did not suffer from limited functionality. Specifically, in one still shot…, [the Applicant] appears to be performing a ‘slam dunk’.” Therefore, the Tribunal decided to “place full weight on the surveillance against the OCF-18s and reports of [the Applicant’s chiropractor].”
Winter Tires, “Vacation” in BC, Art Classes & Hockey Training All Non-Recoverable
No Paid Vacation – The Applicant, in 19-000784 v Certas, who was suffering from a progressive and debilitating auto-immune disorder, sought access to various benefits including winter tires and a week at a wellness retreat in British Columbia. The winter tires were found to “serve no medical purpose and cannot be considered to have a medical nature…(and) there is no evidence that it will reduce or eliminate her driving anxiety in the winter months or actually help her reintegrate into society.” It was also noted that “anxiety over driving in winter in Ontario is not a unique concern specific to [the Applicant]’s impairments that would obligate payment from an insurer on this ground.” Finally, they were not considered to constitute a vehicle modification. “Considering how prevalent and routine the installation of winter tires is for the large majority of drivers in Ontario, I am hesitant to declare winter tires to be a ‘modification’ that would ‘accommodate the needs of the insured’.”
The Applicant’s doctor opined the week away at the wellness retreat in BC to be reasonable and necessary as it would “allow her to take a break from her current situation in Toronto and ‘get out of the rut’ she has been in for the past six years.” The Applicant opted for this particular resort as “it is located on the water, which she finds therapeutic, and there are no similar retreats on the water available in Ontario.”
While agreeing that “a vacation and a break from reality would be beneficial to her mental and emotional state”, the Tribunal disagreed that a “geographical solution” should be funded. “With great respect, finding water therapeutic (as many people do) is not a reasonable basis to obligate an insurer into flying an insured across the country and back for one week, especially so given [the Applicant]’s attendant care needs and functional impairments that would render many of the activities identified to be unavailable to her.” Finally, it was found “a bit disingenuous” to suggest that the resort in BC was the only such that met her needs, “as there are dozens of similar wellness retreats in Ontario, many of which also host their retreats on the water.”
Hockey Skills Training – The Applicant, in 19-003237 v Certas, sought a rehabilitation benefit of $11,865 for hockey training, contending that this would help her regain her physical strength and skill level in order to attain her career goal of playing hockey at the NCAA level. The Tribunal was “sympathetic that the expenses were incurred by [the Applicant] in an attempt to rehabilitate herself and return to playing hockey at a competitive level”. However, given that the Applicant incurred the expense prior to submission of a Treatment Plan, the Tribunal found same not to be payable, in accordance with the requirements of s.38(2) of the Schedule, which cannot be waived by the Tribunal.
In this instance, the Tribunal made no finding on whether the expense is reasonable and necessary. Therefore, it remains to be determined whether hockey skills training, while “atypical”, would ultimately be found to be reasonable and necessary in context of this Applicant’s unique situation.
Art Class – In yet another unique benefit pursuit, in 19-003237 v Certas, the Applicant sought an OT Treatment Plan, primarily recommending art classes that were proposed to facilitate a reintegration into social and leisure activities within the community as well as to build tolerance for activity. The Tribunal reviewed the evidentiary record, finding same to be “devoid of any evidence of a social or leisure activity deficit.” Therefore, the claim for art classes was not reasonable and necessary “because it proposes a solution to a problem which does not exist.”
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