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.

Weathers v. Toronto Transit Commission Insurance Company Limited (20-006288)

In 2000, when the claimant was seven years old, he injured his knee while on a TTC bus. The claimant’s mother applied for NEBs on his behalf. The OCF-3 submitted by the claimant’s family physician did not support entitlement to NEBs. In 2001, the TTC sent correspondence to the claimant stating that NEBs were not payable until the claimant turned 16 years old, and that he did not meet the NEB test regardless. In 2010, when the claimant was 17 years old, the claimant’s mother requested that the matter be re-opened and that NEBs be paid. The TTC responded reiterating its earlier denial. In 2017, the claimant submitted an Election in support of NEBs. The TTC responded with copies of the earlier correspondence denying NEBs. In 2018, the claimant submitted a new OCF-3 supporting NEBs. The TTC assessed the claimant pursuant to section 36, and denied NEBs again based on the IEs. In 2020, the claimant applied to the LAT disputing NEBs. The TTC argued that the limitation period barred the claim. Vice Chair Boyce agreed with the insurer and held that the LAT dispute was barred. The TTC issued valid denials in 2001, 2010, and 2017. Without deciding which date specifically started the limitation period, the claimant initiated his LAT dispute more than two years of even the 2017 denial. Vice Chair Boyce declined to extend the limitation period using section 7 of the LAT Act. The accident was over 20 years prior; there were three valid denials over two decades; and the claimant took no steps to dispute entitlement in 2010 when he turned 16. Additionally, the TTC would be prejudiced in obtaining medical evidence and determining causation now 20 years after the accident.

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.

Randhawa v. Unifund Assurance Company (19-010821)

The claimant sought entitlement to NEBs up to the 104 week mark. Adjudicator Parish held that the claimant did not meet the disability test and dismissed the claim. She accepted that the claimant had psychological impairments, but that the impairments pre-dated the accident. She also made an adverse inference about the claimant’s occupational activities due to his failure to produce self-employment records. Adjudicator Parish also noted that the claimant’s self-reporting to his section 25 assessors and IE assessors did not appear honest or accurate, and that he overattributed the effects of the accident on his level of functioning. Adjudicator Parish also found that the insurer complied with section 37 in terminating NEBs, and that section 36 was not applicable as the claimant was receiving NEBs at the time IEs were requested and subsequently terminated.

Kechichian v. Primmum Insurance Company (19-008194)

The claimant sought entitlement to NEBs. The insurer argued that the limitation period barred the dispute. Adjudicator Lake held that the limitation period applied and that she did not have jurisdiction to extend the limitation period under the LAT Act. She also held that she did not have jurisdiction to apply the doctrine of equitable estoppel. The insurer had denied entitlement to NEBs in July 2016. The claimant did apply to the LAT within two years of the denial, but withdrew the LAT application while undergoing catastrophic impairment assessments. The insurer’s counsel at the time indicated that the insurer would not advance a limitation defence with regard to the issues in that first LAT dispute. Despite accepting that such agreement was made, Adjudicator Lake held that she did not have authority to apply equitable estoppel to prevent the insurer from relying on a limitations defence when the claimant reapplied to the LAT in 2019. Finally, Adjudicator Lake held that she did not have authority to extend the limitation period under the LAT Act.

Bansal v. Aviva General Insurance (19-013174)

The insurer denied the claimant’s claim for NEBs on the basis that he did not suffer from a complete inability to carry on a normal life. The claimant disagreed and applied to the Tribunal for dispute resolution. Adjudicator Paluch concluded that the claimant was not entitled to receive NEBs applying the principles outlined in Heath v. Economical. The evidence led at the hearing indicated that the claimant had a reduced ability to participate in the activities that he did prior to the accident, but he did not have a complete inability. Adjudicator Paluch stated that the claimant provided inconsistent testimony and a lack of medical documentation to support his entitlement to NEBs. Further, the IEs relied upon by the insurer were unrefuted. As a result, the claimant failed to meet the onus of providing on a balance of probabilities that he had suffered a complete inability to carry on a normal life as a result of the accident.

Wangden v. Economical Insurance (19-010637)

The claimant disputed entitlement to the MIG, NEBs, and various medical benefits. The claimant argued that they were entitled to payment of NEBs due to Economical’s failure to comply with the timeline under section 36(4). The insurer argued that the claimant was barred from litigating NEBs for failure to attend a scheduled IE to address the benefit. Adjudicator Mazerolle ruled that the claimant was not entitled to automatic payment of NEBs as the insurer had made a valid request under section 33 for a completed OCF-10 within 10 business days of receiving the OCF-1 and OCF-3, which extended the time to respond under section 36(4). In relation to the section 55 issue, the claimant argued that the insurer’s notice letter for the IE did not contain suitable “medical and other reasons” as set out in M.B. v Aviva. The insurer argued that the notice was the same as all other notices provided to the claimant over the course of the claim, yet there was only the one IE the claimant failed to attend. Adjudicator Mazerolle ruled in favour of the claimant, noting that the notice provided was insufficient as well as confusing to an “unsophisticated reader”. Adjudicator Mazerolle noted that even though the claimant did attend other assessments with similar notices, this did not affect the insurer’s responsibility to provide a proper notice. As such, the claimant was allowed to proceed with his claim for NEBs.