Category: Non-Earner Benefits

Hassan v. Aviva Insurance Company of Canada (21-000811)

The claimant disputed entitlement to NEBs, ACBs, and a special award. As a preliminary motion, the insurer sought to exclude the claimant’s CAT reports because they were not disclosed in accordance with the LAT order timelines. Adjudicator Prowse excluded the CAT reports because the documents were not exchanged in accordance with the order, and because CAT was not an issue in dispute at the hearing. As to the disputed benefits, Adjudicator Prowse held that the claimant did not meet the burden of proving entitlement.

Al Dhoun v Aviva Insurance Company (20-009309)

The claimant disputed entitlement to non-earner benefits, medical assessments, and psychological services. The Tribunal found that the claimant did not meet the requirements for NEBs, as he failed to demonstrate a complete inability to carry on a normal life due to the accident. Despite medical evidence of ongoing impairments, the claimant did not establish the extent to which his pre-accident activities were affected. Additionally, the Tribunal determined that the claimant was statute-barred from pursuing reimbursement for a neurological assessment due to falling outside the two-year limitation period.

Zhu v. The Co-operators General Insurance Company (20-012105/AABS)

The claimant applied to the LAT to dispute entitlement to NEBs, various medical benefits, and an OCF-6 for clothing and eyewear. Adjudicator Neilson found that the claimant had not established that he suffered a complete inability to return to his pre-accident life .The claimant failed to include in his submissions evidence to support his claims for clothing and eyewear. Adjudicator Neilson granted $2,594 of a denied physiotherapy treatment plan because the insurer had failed to explain why it had reduced the approved hourly rate for the treatment. She denied the remaining $1,475.48 of the treatment plan because the claimant failed to provide evidence or reasons to refute the insurer’s IE report in which the assessor recommended that the claimant engage in self-directed exercises rather than physiotherapy. The claimant first complained of back pain nearly one year after the accident. Adjudicator Neilson stated that the claimant could not establish that the back pain was caused by the accident, given the length of time between the date of the accident and the claimant’s first complaint. She denied two treatment plans for physical therapy that were proposed in July 2020, over one year after the date of the accident. Adjudicator Neilson awarded the claimant the disputed treatment plan for psychological services. The insurer had refused the treatment plan on the basis that the claimant’s psychological impairments were not a “direct result” of the accident. Adjudicator Neilson found that s. 15 of the SABS required an impairment to be “a result” of the accident and not a “direct result”.

Shaikh v. Economical Insurance Company (20-009837/AABS)

The claimant brought a LAT application to dispute NEBs and his MIG designation. Adjudicator Flude found that the claimant was not entitled to NEBs because he had failed to submit a signed application for NEBs until June 8, 2020, approximately a year after the accident of July 16, 2019. Adjudicator Flude confirmed that an application for NEBs could not be considered complete until a signed OCF-3 has been submitted. The claimant was found to be ineligible for NEBs in the period following the submission of his application because he failed to respond to a s. 33 request issued by the insurer. Adjudicator Flude also found that the claimant’s injuries fell within the MIG. The claimant had failed to report his significant pre-accident history with his medical examiners, which rendered their diagnoses regarding his impairments unreliable. The Adjudicator noted that the claimant’s medical records reflected an improvement of his symptoms from July 2019 to November 2019. He drew an adverse inference from the claimant’s failure to produce further medical records after November 2019 and opined that the records would have reflected an improvement of the claimant’s symptoms. Adjudicator Flude concluded that the claimant did not suffer from chronic pain syndrome as a result of the accident and that his injuries were minor in nature.

Chavez v. Unifund Assurance Company (20-011594/AABS)

The insurer raised a preliminary issue and argued that the claimant’s claim for NEBs was statute barred. The claimant had failed to submit an OCF-3 with her application pursuant to s. 36 and had failed to apply to the LAT within two years of its refusal to pay NEBs pursuant to s. 56 of the SABS. Adjudicator Grant noted that the claimant had submitted her OCF-3 over four years after the date of her accident, despite the insurer’s letter requesting that she submit an OCF-3 and its letter advising the claimant that her NEBs were denied due to her failure to submit an OCF-3. Adjudicator Grant found that the claimant’s application for NEBs was statute barred. He refused to exercise his discretion to grant an extension under s. 7 because of the length of the delay, the lack of evidence supporting the claimant’s intention to appeal, and the prejudice suffered by the insurer due to the delay.

Delena v. Aviva Insurance Company (19-007957/AABS)

The claimant filed an Application disputing entitlement to NEBs, interest and sought costs under Rule 19. The claimant relied on limited medical evidence, including some diagnostic reports, an OT functional assessment, and doctors’ records. The claimant argued that his accident-related injuries resulted in a complete inability to carry on a normal life. The insurer argued that the claimant’s OCF-3 did not support entitlement to a NEB, nor did he submit any further OCF-3s indicating entitlement. Furthermore, the insurer noted that the medical evidence submitted did not indicate that the claimant met the NEB test. The claimant noted that the OCF-3, completed by a physiotherapist, was not in itself a complete medical assessment, and further argued that Aviva should have gathered evidence on its own addressing the claimant’s entitlement. While Adjudicator Hines did find the claimant’s argument regarding the OCF-3 not in itself being a medical assessment relevant, she did not find the argument that Aviva should have gathered more evidence to be persausive, noting that the onus was on the claimant to present evidence proving his case, not on the insurer. Adjudicator Hines agreed with Aviva that the failure of the claimant to submit a supportive OCF-3 would lead to his claim failing. She further noted that, if her interpretation of this, specifically s. 36(3), was wrong, the claimant’s Application would still fail as the claimant’s submissions barely discussed his pre-accident functioning compared to the post-accident reports, which was a crucial factor required to determine entitlement as per the landmark case of Heath v. Economical. Furthermore, aside from the OT report submitted by the claimant, none of the other reports of medical records showed that he was continously prevented from carrying out his pre-accident activities. Adjudicator Hinest noted that the bulk of the evidence submitted by the claimant only summarized other medical records and listed impairments, but did not address how these impairments resulted in a complete inability to carry on a normal life. There were also vague references to overal functional impairments, but these were not described or expanded upon. As the claimant did not submit a supportive OCF-3, and considering his evidence had failed to address his post-accident functioning in comparison to his pre-accident functioning, Adjudicator Hines was unable to see a clear picture of the claimant’s pre-accident and post-accident functioning, which was the first step in determining entitlement to a NEB. As such, the claimant’s Application was dismissed.

Hordo v CAA Insurance Company (20-012761/AABS0

The claimants were involved in an accident. They filed an application, and the LAT found that they were not entitled to non-earner benefits, housekeeping/home maintenance benefits, interest, a special award, or costs. The claimants filed for reconsideration. Their request for reconsideration was denied. Vice-Chair Moore did not find a violation of procedural fairness, as the applicant was afforded the opportunity to examine an adjuster familiar with the file, and different adjudicators are allowed to hear procedural vs. substantive issues. Additionally, Vice-Chair Moore found that there were no errors of fact or law, as there was no evidence the claimants were improperly served materials. Lastly, Vice-Chair Moore found that the Tribunal did not hear false evidence that would have likely affected the result.

Steele v. Aviva General Insurance (21-007268/AABS)

The claimant filed a LAT Application disputing entitlement to NEBs, interest, and a special award. The claimant testified that although she was able to do things, she was not able to totally engage in all of her pre-accident activities due to pain. For example, the claimant noted that she had “some” limitations with respect to dressing herself, but could do so without help. She had not returned to the gym due to pain, and her pre-accident walking routine of 5-6 days a week had been limited to 1-2 days a week with a reduced tolerance. The claimant was self-employed prior to the accident and would work 3-5 hours a day, but post-accident, only worked 1-2 hours a day and now relied on her husband and daughters to distribute promotional flyers for her. While she did currently attend college, she stated that she had now fallen behind due to accident-related concentration issues. The claimant relied on various medical evidence, including diagnostic studies showing a partial thickness tear of the left shoulder and various s. 25 reports. Vice-Chair Campbell noted that while the medical evidence did show that the claimant had suffered some difficulty in her daily routines, some moreso than others, the overal evidence and testimony of the claimant did not show that she was unable to engage in “substantially all” of her pre-accident activities, nor was she continuously prevented in engaging in substantially all of her pre-accident activities as she continued to work, attend school, and was capable of self-care. Although she did demonstrate some restrictions, including reduced participation in activies and resigning from her pre-accident role at her church, this did not meet the strict NEB test. The Application was dismissed.

Liu v. Certas Direct Insurance Company (20-012975/AABS)

The claimant disputed entitlement to NEBs, several treatment plans, and whether her injuries fell under the MIG. Adjudicator Maedel found that the claimant’s injuries fell outside of the MIG due to psychological impairments. Despite the insurer’s arguments that the claimant’s psychological report was based entirely on subjective reporting and not on contemporaneous medical records, Adjudicator Maedel relied on the claimant’s report because the insurer did not have a report to respond to the claimant’s report. The claim for NEBs was rejected because the claimant failed to produce evidence regarding her pre-accident lifestyle to establish how she suffered a complete inability to carry on a normal life. The disputed chiropractic treatment plan was rejected because the claimant failed to produce medical evidence to support that the treatment was reasonable and necessary. Finally, Adjudicator Maedel found that the psychological assessment was reasonable and necessary based on his finding that the claimant suffered from psychological impairments.

Fu v. Pembridge Insurance Company (21-012902)

The claimant applied to the LAT seeking entitlement to NEBs and medical benefits. The insurer argued that the claimant was barred from seeking entitlement to the benefits because he did not dispute the denials within the two-year limitation period. The accident occurred in December 2018, the insurer denied entitlement to NEBs and medical benefits between January and March 2019, and the LAT application was filed in October 2021. The claimant was a minor at the time of the accident. He argued that entitlement to NEBs should be considered discovered when he became eligible on his 18th birthday (September 2020) and, accordingly, the LAT application was within the two-year limitation period. He requested an extension of time with regards to the medical benefits. Adjudicator Kaur held that nothing in s. 36 of the SABS sets out a separate process for applying for NEBs for minors and that nothing in s. 36 makes it a requirement to be 18 to apply for NEBs. Adjudicator Kaur found that the claimant met the eligibility requirement to apply for NEBs under s. 12(1)2i of the SABS at the age of 16 when he was a full-time student (even though an insurer is not required to pay NEBs before an insured is 18 years old). Adjudicator Kaur was not persuaded by the discoverability argument and found that the claimant applied to LAT after the two-year limitation period had expired. Adjudicator Kaur declined to extend the limitation period pursuant to s. 7 of the LAT Act. The application was dismissed.