Gore v. Rusk (2022 ONSC 2893)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. The Court dismissed the appeal, holding that both appeals were on matters of mixed fact and law and that there were no extricable legal error that had been demonstrated. The findings regarding each WPI allocation were findings of fact, as was the issue of whether combining certain ratings would entail double-counting or overlap. The Court also dismissed the argument that the reconsideration process was unfair because only one of the two adjudicators that heard the original matter conducted the reconsideration. The Court held that the Tribunal had broad authority to conduct reconsiderations, and that any adjudicator could hear the reconsideration, including the adjudicator or adjudicators hearing the original matter, or an entirely new adjudicator.

Shen v. Aviva General Insurance Company (20-000662)

The claimant applied to the LAT seeking entitlement to NEBs and chiropractic services proposed in one OCF-18. Pursuant to section 36(4) of the SABS, the claimant argued that the insurer was required to pay for NEBs as a result of a failure to reply to an OCF-3 within 10 days and a failure to provide adequate medical and other reasons why it determined the claimant was not entitled to NEBs. Alternatively, the claimant argued that NEBs were payable as a result of failure to provide s. 44 reports within 10 days of receipt of the reports, as required by section 36(7) of the SABS. The insurer argued that the claimant failed to comply with section 33 requests for medical records and was not entitled to any amount for NEBs. Adjudicator Grant found that the claimant was in non-compliance with section 33, having failed to comply with all reasonable section 33 requests up to the time of the hearing, and was not entitled to payment of NEBs. Adjudicator Grant also found that the section 33 requests were made in compliance with section 36(4) of the SABS. Adjudicator Grant further found that the medical and other reasons in the s. 44 notice of examination were sufficient and the claimant failed to provide compelling evidence that the insurer was required to pay NEBs for any period of alleged s. 44 non-compliance. It was noted that the claimant attended all of the s. 44 assessments, and if there was an issue with reasons for the examination, she could have requested further information from the insurer prior to attending. The claimant was also found not to meet the complete inability test for NEBS. The claim for NEBs was dismissed, but the claimant was entitled to the chiropractic treatment.

Fahritdinov v. Aviva General Insurance (19-009897)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Norris concluded that the claimant was not entitled to the benefits claimed. The claimant sustained injuries to his neck, shoulder, back, and knee as a result of the accident and required surgical intervention. Adjudicator Norris found that while the claimant may have experienced some changes to his life, he failed to demonstrate that he suffered a complete inability to carry on a normal life as a result of accident-related impairments. Thus, the claimant was not entitled to NEBs. Similarly, the claimant required attendant care services immediately following the June 20, 2018 surgery on his right knee. However, Adjudicator Norris found that the claimant had recovered from the surgery and no longer needed the assistance claimed. There was nothing in the evidence to suggest that the benefit was incurred, or that it was not incurred due to the insurer unreasonably withholding payment. There was a difference between what the Form 1 said and what the claimant reported to his assessors regarding his personal care abilities. He reported that he showered and completed most of his housekeeping and home maintenance tasks independently and that he had no limitations with respect to personal care. The application was dismissed.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

Snagg v. Certas Home and Auto Insurance Company (20-003642)

A preliminary issue hearing was held to address whether the claimant was barred from proceeding with his claim for NEBs due to failure to submit a completed OCF-3. The claimant submitted an OCF3 which endorsed that he did not meet the test for NEBs. The insurer subsequently denied NEBs which led to the claimant commencing a dispute at the LAT. The insurer argued that the OCF3 could not be considered complete as it did not support entitlement to NEBs. The claimant relied on the case of 16-000279 v. Certas Home and Auto Insurance Co where the Tribunal found that the claimant had successfully applied for NEBs despite an OCF3 indicating that the claimant was not eligible. Adjudicator Norris agreed with the claimant, finding that the submitted OCF3 contained all of the evidence that the insurer required to make a decision and highlighted that the insurer’s actions (denying NEBs on the basis of the OCF3) supported this point. The claimant was allowed to proceed with his application.

Richards v TD General Insurance Company (20-001799)

The claimant was injured in an accident on December 2, 2016 and applied for benefits. The insurer denied the claim for NEBs. The preliminary issue for the Tribunal was whether the policy of insurance was entered into or renewed before June 1, 2016 such that the claimant would have access to the pre-June 1, 2016 SABS benefits. The claimant argued that because the insured (the claimant’s father) agreed to the terms of the contract in April 2016, it was a pre-June 2016 contract. The insurer argued that because the policy documents were issued in June 2016, with an effective date listed as June 14, 2016, the policy was a post-June 2016 policy. Adjudicator Lake held that the insurance contract between the insured and the insurer was entered into on April 28, 2016, and therefore, prior to the June 1, 2016 SABS. In her decision, Adjudicator Lake reviewed the communication between the insurer and the insured, which stipulated that the contract was entered into prior to June 1, 2016 and that it was not a renewal, as the insurer changed its entity name for the new contract. While the effective date of the contract was June 14, 2016, Adjudicator Lake found that the date of the contract, April 28, 2016, was the effective date of the insurance contract, as this was the date that the claimant agreed to terms of his insurance contract. Therefore, Adjudicator Lake found that the pre-June 1, 2016 SABS applied to the case.

Carpizo v. Co-operators General Insurance Company (20-007999)

A preliminary issue hearing was held to address whether the claimant was entitled to payment of NEBs until the substantive hearing based on the insurer’s failure to comply with section 36 of the SABS. Adjudicator Farlam found that the claimant was not entitled to the payment of NEBs until the substantive hearing and that the claimant failed to prove that the insurer did not comply with the SABs. A denial letter was sent indicating that the insurer did not have sufficient medical information to support the claimant’s entitlement to NEBS and that the benefit would not be payable until the receipt of additional information, which was requested under section 33. The claimant failed to comply with the insurer’s request. The claimant argued that the letter was not SABs compliant as it failed to reference the submitted OCF3. Adjudicator Farlam highlighted that there is no requirement that an OCF3 be mentioned in a denial letter. The claimant further argued that she had requested the additional records and ought to have been paid NEBs in the meantime. Adjudicator Farlam disagreed, finding that the requirement is for a claimant to provide records to the insurer, not merely request them.

Cargnelli v. Aviva Insurance Company (20-001892)

The claimant applied disputed his entitlement to NEBs, two medical benefits, interest, and a special award. Adjudicator Boyce dismissed the NEBs claim, awarded the two medical benefits plus interest, and awarded a 10 percent special award with respect to the medical benefits. With respect to NEBs, Adjudicator Boyce noted that while according to Heath a total disability is not required, the NEB test is a stringent one. Aviva relied on its IE reports and the claimant’s self-reporting. Adjudicator Boyce noted that the claimant reported that he had resumed self-care tasks and basic housekeeping activities, mowed his lawn, attended social events, and could drive his vehicle and motorcycle. Adjudicator Boyce found that the claimant’s pain did not practically prevent him from engaging in his most valued pre-accident activities. As for the medical benefits, Adjudicator Boyce found that both disputed treatment plans were reasonable and necessary to help him reduce pain and improve his recovery and that pain reduction is a legitimate goal for treatment. As for the special award, Adjudicator Boyce agreed with the claimant’s submissions that it was difficult to reconcile Aviva’s denial of medical benefits during the same period it had paid a NEBs.

Habte v. Aviva General Insurance Company (19-008941)

The claimant was injured in a 2017 accident. She applied to the LAT in 2019 disputing, among other things, NEBs. The insurer argued that the failure to submit an OCF-3 within the first 104 weeks barred the claim for NEBs. Adjudicator Lake dismissed the NEBs claim as it was not made in a timely fashion. An OCF-3 dated October 2018 was not submitted to the insurer until 2020, and the claimant failed to prove that it had been delivered at any time prior to 2020.