The claimant filed a request for reconsideration following a decision in which the Tribunal concluded that he was not entitled to NEBs. Adjudicator Watt noted that the claimant was trying to re-argue its case, and that a reconsideration is not an opportunity to reargue arguments that previously failed. As such, he dismissed the reconsideration request.
The insurer brought a preliminary issue hearing on the grounds that the claimant was barred from disputing his entitlement to NEBs for failure to submit a completed disability certificate certifying that she meets the criterion for NEBs. Although the claimant submitted an OCF-3 within 20 weeks of the accident, it indicated that the claimant did not suffer a complete inability to carry on a normal life. The claimant did not submit any other OCF-3. Vice Chair Farlam agreed with the insurer, finding that a “completed disability certificate” as required by the SABS can only be interpreted to mean completed in a manner that certifies that the claimant meets the criterion for NEBs. As such, the claimant’s claim for NEBs was dismissed.
The claimant disputed his entitlement to NEBs. The claimant argued that he suffered from a complete inability to work and live his normal life because he had a psychological impairment and widespread pain as a result of his accident-related injuries. The insurer submits that the claimant failed to discharge his onus of proving he has suffered a complete inability to carry on a normal life. Vice Chair Farlam agreed, noting that the weight of the evidence was that the claimant’s pain and psychological condition was not debilitating and had not prevented him from working at his pre-accident occupation or resuming substantially all pre-accident activities. The claimant’s claim for NEBs was dismissed.
The claimant applied to the LAT seeking entitlement to NEBs. Causation was an issue at the hearing. Adjudicator Johal held that the test to determine causation is the “but for” test. The claimant submitted that he had one episode of psychosis a couple of months prior to the accident, but a formal diagnosis of psychosis was not made until he had multiple hospitalizations following the accident. Adjudicator Johal found that the accident was not a necessary cause of the claimant’s impairments, and that the claimant did not establish on a balance of probabilities that he would not have suffered the impairments “but for” the accident. Adjudicator Johal also found that the claimant did not meet the test to be entitled to NEBs, regardless of the causation issue.
The insurer sought reconsideration of the Tribunal’s award of NEBs and medical benefits, and that section 55 did not prevent the claimant from disputing entitlement to the medical benefits. Vice Chair Lester granted the reconsideration in relation to NEBs, but only in ordering that NEB entitlement began six months after the accident as opposed to four weeks, since the claim was under a transitional policy. The reconsideration was dismissed in relation to entitlement to benefits because no error in law was identified by the insurer and the findings of fact were permissible based on the evidence before the Tribunal. In terms of IE non-attendance, Vice Chair Lester noted that section 55 would only apply if the IEs in question were in relation to a disputed benefit. The notices of examination did not indicate which medical benefits were being addressed, so the Tribunal could not determine if section 55 applied.
The claimant sought entitlement to NEBs and ACBs. Adjudicator Boyce dismissed the claims. He held that the claimant failed to place sufficient evidence before Tribunal regarding her pre-accident activities, her post-accident activities, the changes she experienced because of the accident, and the activities she placed most importance on. Further, the evidence available suggested that the claimant continued to maintain independence with self-care and activities of daily living. Surveillance showed her engaging in normal activities as well. In terms of the claim for ACBs, Adjudicator Boyce concluded that the claimant’s own self-reporting did not support the need for personal care. There was also no evidence of personal care services being incurred.
The claimant sought entitlement to NEBs and medical/rehabilitation benefits. Adjudicator Boyce found that the claimant did not suffer a complete inability to carry on a normal life, agreeing with the findings in the insurer’s examination reports; while the reports noted headaches and intermittent neck and back pain, Adjudicator Boyce found it was “a stretch to equate these impairments to having a complete inability to carry on a normal life.” Adjudicator Boyce further found that the claimant was entitled to an orthopedic assessment and psychological treatment since the insurer had indeed approved these treatment plans. The claimant was not entitled to any of the other disputed examinations and treatment plans since he had not met his burden to prove they were reasonable and necessary.
The claimant sought entitlement to NEBs and ACBs; the insurer argued that no NEBs were payable before a Disability Certificate was submitted and that no ACBs were payable before a Form 1 was submitted. Adjudicator Norris agreed with the insurer and held that no claims were payable until the requisite forms were submitted to the insurer. The claimant was permitted to proceed with the hearing relating to NEBs after the Disability Certificate was submitted.
The claimant sought entitlement to NEBs, psychological services, and a psychological assessment. Adjudicator Watt found that the claimant had not proven that he met the requirements to qualify for NEBs, in light of evidence that the claimant had minimal physical functional impairment and the claimant’s own evidence under oath that he was able to perform all self-care tasks and had no functional limitations from the accident. Adjudicator Watt did not find psychological services and a psychological assessment reasonable or necessary since the claimant admitted in examination under oath that he was not claiming any psychological issues as a result of the accident.
The claimant sought entitlement to NEBs, a social work assessment, the cost of completing three disability certificates, and interest. Adjudicator Boyce found that the claimant did not meet the stringent test to qualify for NEBs. The claimant stated that her pain improved with treatment and was not debilitating; she also reported independently carrying out her daily routines and self-care. As such, while Adjudicator Boyce acknowledged that test did not require the claimant to be bed-ridden, he held that the test demanded more evidence of impaired functionality and inability. Adjudicator Boyce did not find a social work assessment reasonable or necessary since there was no evidence that the assessment could address the claimant’s specific complaints. Adjudicator Boyce also did not find the cost of completing the three disability certificates to be reasonable or necessary since the insurer did not request them and they failed to provide new or additional information about the claimant’s impairments.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP