Chapter III
Once they've been knocked off their feet by an injury, some men and women
never get up again. When you open a file and find a claimant still disabled a
year or more after their accident by an injury that shouldn't have lasted more
than a few weeks, you know you're about to enter, once again, the confusing
region of psychic trauma, the upside down world where an injury can become
an asset, something to cling to, a refuge from a cruel and indifferent world. The
file I opened next, that of Martin Myers, was one of these. It would produce a
crisis for me, and for Martin, beyond anything I could have expected when I
came to TNM.
Claimants like Martin complain of continuing pain that no doctor can
explain, except to give it the usual diagnosis of 'chronic pain syndrome'. They
can't work, can't look after their children or clean their homes, can't exercise,
and they almost always insist that they can't have sex anymore. Inactivity
slowly deconditions them, while anger and frustration sensitize them to their
pain. They take a variety of drugs, which partially cover up the symptoms while
the side effects give them new ones. They quarrel constantly with their partners
- for these claimants are almost always married – and when they're finally
persuaded to submit to psychotherapy they find no solution there either. You
usually meet them living in a hopeless limbo, unhappy and unloved, sinking
slowly deeper into depression and despair.
They aren't frauds. That's another kind, who can be fun because you
know they aren't suffering and there is the elaborate game to be played with
them – the medical examinations, the surveillance by private investigators, the
legal actions, lawyer battling lawyer, no one sure who will win. We play the
same game with claimants like Martin, but it's a more serious one then because,
in the midst of it all, the claimant's life is usually going to pieces.
Like any adjuster, I couldn't help comparing myself with these people.
Whenever I'd been knocked down, I'd always managed to get back up. It
wasn't a conscious decision, more of an animal-like response. There was some-
thing stupid about it, like a punch drunk boxer getting up from the floor only to
be hit again. Claimants like Martin are different. They've thought about it and
they don't want to get up anymore.
Martin was fifty years old when I first opened his file, two years younger
than me. Born into one of the old Irish/Scottish neighborhoods in central
Toronto, communities that didn't really exist anymore, he'd left high school after
grade nine, worked in factories, drove delivery trucks, then he'd had a service
station franchise for several years. At forty-three, after losing the service station,
he'd joined his ailing father in a small appliance store on Eglinton Avenue West,
a busy area of small shops and supermarkets that was populated now mostly by
Jamaican, Korean and Central American immigrants. Completely out of touch
with these people, and with his father finally dead, Martin had been slowly
going out of business when he had his accident.
That night, in February 1999, he was driving down the steep hill on Pottery
Road towards the expressway entrance in the valley when he hit the concrete
wall of the underpass at the bottom. The firemen who got the door of his '89
Tempo open reported that he cursed them and demanded that they let him die.
But his only significant injuries were an undisplaced fracture of his pelvis and
three broken ribs.
After he was out of the hospital, an adjuster went to the store to take a
statement from him. She met Martin seated behind the cash register in a
wheelchair, though he later admitted to her that he could get around with a
cane. He said he'd only returned to work because he couldn't afford to hire
anyone to replace him. In her notes, the adjuster described dusty radios, kitchen
appliances and obsolete TVs sitting on the shelves. In the three hours she was
there, she counted only four customers, older residents of the neighborhood
who had come in to get a blender fixed, to buy a few batteries, or just to talk.
The identification photograph she took showed a big man in a faded maroon
cardigan with a grey T-shirt underneath. He had a slack heavy look, as if the
only exercise he got, even before the accident, was a slow climb up the stairs to
his apartment above the store. Forty-nine at the time of the photo, he looked at
least ten years older, defeated and tired of life.
There was no picture of his wife, but I would eventually meet her. A lean
hardened woman who worked as a bookkeeper for a nearby bodyshop, Alice
Myers, when I saw her, looked like someone who would never accept defeat,
but never know real happiness either.
About a month after the statement was taken, Martin decided that he
couldn't work anymore. He closed the store and put in a claim for Income
Replacement Benefits, or IRBs as we referred to them.
The night of the accident he'd been drinking, though he only admitted to
the customary two beers. Because of his injuries, or maybe some misunder-
standing or disagreement between the police and the hospital staff, no breath-
alyzer or blood sample was taken. That probably saved his right to claim an
IRB, which you didn't get if you were impaired. But the legislation also required
that an injury be the result of an 'accident'. Given the remarks he'd made to the
firemen, the nature of the collision and the apparently poor financial situation of
the store, TNM took the position that the accident was a suicide attempt, a
deliberate act, and refused to pay him any benefits.
Martin hadn't confessed to attempting suicide, or left any note, so there
was really little hope that an arbitrator or judge would support the refusal. But
TNM stuck with the defense anyway. Once an adjuster has managed to
terminate or refuse a benefit, claims people are always reluctant to reinstate it.
Everyone knows that a claimant whose benefits have been cut off is more
motivated to settle than one who is getting payments.
That's when Martin retained Sarah Blackman, a young lawyer on her own
who'd developed a reputation for being smart and aggressive. She filed a dis-
pute, then, at the obligatory mediation, when TNM offered five thousand
dollars to settle all benefits from that accident, she advised Martin to refuse. He
did, then she filed immediately for arbitration.
Faced with an arbitration that would cost them at least twenty thousand
dollars in legal expenses and probably result in Martin winning the right to claim
IRBs, TNM backed down and agreed to start paying him.
But how much were they to pay? As a self-employed claimant, it was up to
Martin to prove his pre-accident income. He'd only produced a statement from
his accountant showing a net income from the store of $42,000 a year, enough
to get him the maximum IRB of four hundred dollars a week. When TNM's
accountant asked for income tax returns for the last three years, along with
other documentation from the store's books, Martin produced only tax returns
for two years, claiming he hadn't been able to organize his records sufficiently
to file his return for the year prior to the accident. The tax returns were
ambiguous and he'd supplied nothing else, but, to avoid the arbitration, TNM
agreed to pay him two hundred dollars a week, with the proviso that should it
eventually be determined that his IRB entitlement was less than that, Martin
would have to reimburse them.
Sarah hadn't sent anything more by the time I arrived at TNM - six months
after the IRB payments started – which suggested that Martin might never be
able to support an IRB of two hundred a week, maybe not even that. If the
store had been losing money at the time of the accident, he might not qualify for
anything. He might end up owing TNM a lot.
But some self-employed people are so bad at record keeping that the
income can be there, just difficult to demonstrate. People like Martin often don't
know themselves what their real income is. But arbitrators and juries can be
sympathetic to them, so the outcome of litigation on their files is difficult to
predict.
Then there was the question of disability. Two months before I arrived,
Vashti had sent Martin to an orthopedic surgeon for an Insurer's Examination,
or IE as it was usually called. The doctor examined Martin, looked at his x-rays,
hospital records and other medical reports already on file, then decided that he
didn't have a 'substantial inability to perform the essential tasks of his
employment'.
So Vashti had terminated the IRB payments.
When we stopped someone's benefit, the regulations required us to offer
them a DAC (pronounced 'dak') assessment, that is to say a neutral examination
by doctors at a government appointed Designated Assessment Centre. There
were also assessments for treatment, rehabilitation and attendant care, all known
as DACs, and the insurer had to foot the bill for each of them.
With IRBs, if a claimant elected to go to a DAC we had to reinstate the
benefit until the DAC assessment report was completed. Martin had chosen the
DAC, so he was getting his two hundred dollars a week again when I took over
his file.
The DAC assessment was now only a week away, but Vashti hadn't had
time to copy the medical documentation for the DAC centre before she left. A
couple of the telephone message slips under my phone were calls from the
centre asking for it. The medical and rehabilitation file, including the hospital
records, amounted to at least four hundred pages. It would have been risky to
send it out for copying this late, so I decided to do it myself. I removed the
pages from the metal fasteners, took out as many staples as I could find, then
set out for the photocopying machine. I knew from my tour of the office with
Katya that ours was located in an alcove that also contained a fax machine and
printer.
The photocopier was a big one, the kind with an air compressor to assist
the paper through. I fed about thirty pages into the top of the machine and
pushed the start button. With a deep hum and a heavy breathing sound it began
pulling the pages in and shooting them out the other side. I was putting more
pages in when I became aware of someone else in the room.
I turned to see a young Asian woman with a treatment plan in her hand. In
fact, she looked very Vietnamese. Something about the way she held the
treatment plan told me she was an adjuster, but I didn't remember meeting her
earlier.
"I can wait," she said with a shy smile.
"No, I have too much to do. You go ahead," I said, removing what I had
completed.
"You are new?" she asked, putting her treatment plan in the machine.
Because they were in the form of a four page folded booklet, she had to do it
manually, one page at a time, lifting up the cover of the copier each time so she
could fold and unfold it.
"Yes, I'm Chris," I said, extending my hand. Hers was small, light brown
and firm.
"I'm Lucy," she said, taking her treatment plan and copies from the
machine. "Which unit are you?"
"Vincent's."
"Ah, with Kat."
"And you?"
"With Gloria."
"And Ken Rampersad?"
"Yes, he is my friend," she said with some satisfaction.
She left and I finished my copying. When I got back to my desk, I found
the company personnel directory on the computer, searched the names and
found Lucy Tran.
I'd met enough Vietnamese to guess that she was about thirty-five, so she
could have been a child during the war. From her accent I could tell that she
spoke the language, and she had a southern face.
I sat and thought about that. There were a lot of South Vietnamese in
Toronto now, yet there had been none before the fall of Saigon. Would she
have been in that office if men like me hadn't gone to Vietnam? If we hadn't
lost the war?
I returned to Martin's file.
There was a handwritten letter from him, accompanied by a collection of
taxi, parking and prescription receipts, along with a list of mileage and travel
destinations. I thumbed through the drugs to see what he was taking. There was
Vioxx and Tylenol 3, both anti-inflammatories, Endocet, a narcotic that would
be for pain too, Metoprolol, which I knew would be for hypertension, Nitro
PRN, no doubt for angina, Lipitor to control cholesterol, Diazepam, the
tranquilizer known better as Valium, Lithium Carbonate and Zoloft. It was quite
a list, but unfortunately not at all unusual for someone who had been off work
almost a year.
The mileage looked inflated, and I had my doubts about some of the taxi
receipts, but I decided to pay them since they were overdue. The heart
medications probably had nothing to do with Martin's accident injuries, but I
knew a refusal would only produce a letter from his doctor indicating that
anxiety brought on by the injuries made his blood pressure more of a concern.
What interested me most were the Lithium and the Zoloft. Zoloft was one of
the latest psychiatric drugs, one of those promoted now, even on television, as a
medical answer to depression and other psychological problems. Lithium was
usually prescribed to reduce the manic symptoms in manic-depressives. It
could produce some serious side effects, like muscle tremors, co-ordination and
speech problems, so it was only used when the situation was serious. Except for
the apparent suicide attempt, I'd seen nothing in the file to indicate that Martin
had psychological problems.
I decided to call him. I'd noticed from file notes and correspondence that
he and Vashti had talked frequently with Sarah Blackman's knowledge. On
accident benefit files most lawyers consent to direct contact with their clients
simply because they don't have time to do all the phoning themselves, and their
clients couldn't afford to pay for it if they did.
"Another adjuster?" Martin said skeptically. "Well I hope you're smarter
than the last two."
"They did something wrong?"
"They tried to pay me nothing. They knew damn well I couldn't work, but
that didn't matter."
"I called to tell you I'm paying these expenses you sent last month."
"Well, that's something. When I called last week, no one could even find
the file."
"You've got some medication here Martin, Zoloft and Lithium. Are they to
do with the accident?"
"They sure as hell are."
"But they're psychiatric drugs."
"Yeah, and they were prescribed by my psychiatrist because you people
have driven me nuts."
"Did you ever tell anyone that before?"
"Nobody asked."
I told him I'd pay for them this time, but we would need a report from the
psychiatrist explaining their relationship to the accident before I would consider
paying them again. I said I would notify his lawyer of that, promised to send
him the money for the drugs and other expenses and discontinued the call.
Then I wrote a letter to Sarah Blackman. I sent her copies of the Zoloft and
Lithium receipts and requested that she produce a report from the psychiatrist.
If she didn't already know that Martin was seeing a psychiatrist, she'd be very
interested to find out. Psychological problems always strengthen a claimant's
case, adding to its financial value.
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