Category: Non-Earner Benefits

K.B. v. Aviva General Insurance Company (17-009088)

The claimant sought entitlement to NEBs. Adjudicator Punyarthi dismissed the claim. He held that the claimant did not meet the “complete inability” test, and that the evidence submitted did not provide an in-depth assessment of the claimant’s pre-accident and post-accident activities or how he was practically prevented from engaging in the activities that were most meaningful to him. The insurer had argued that the claimant was barred from receiving NEBs because IRBs had been paid earlier in the claim. Adjudicator Punyarthi rejected that argument, reasoning that there was a Disability Certificate supporting both IRBs and NEBs, and the insurer had not requested an election from the claimant.

T.T. v. Security National Insurance Company (18-002654)

The claimant sought entitlement to NEBs and medical benefits for physical therapy. Adjudicator Ferguson held that the claimant did not meet the “complete inability” test because her pain did not practically prevent her from engaging in her pre-accident activities. She continued to perform self-care, she received accommodations at college, and she had returned to a substantially normal life. The claim for physiotherapy was also denied because the claimant had reached maximum medical recovery.

Applicant v. Toronto Transit Commission (17-009121)

The claimant sought entitlement to NEBs, ACBs, medical benefits, and a special award. Adjudicator Boyce denied entitlement to NEBs and ACBs, but awarded two medical benefits for physiotherapy and chiropractic therapy. With regard to NEBs, the adjudicator noted that the claimant’s grades increased after the accident, she did not require assistance with personal care more than two months after the accident, and she continued to maintain a social life. With regard to personal care, the claimant received some assistance from her mother in the first few weeks after the accident, but did not require long-term care. Further, the claimant’s mother did not suffer an economic loss as a result of providing care. The claimant also failed to provide a Form 1 before such services had ceased. Finally, the adjudicator agreed that pain relief was a valid goal and that further treatment was reasonable and necessary. A special award of $1,000 was granted because the insurer had delayed payment of earlier benefits and was not transparent with the claimant regarding her claim.

M.G. v. The Guarantee Company of North America (17-008687)

The claimant sought entitlement to NEBs, ACBs, and various medical benefits. Adjudicators Punyarthi and Watt dismissed the claims. They held that the claimant continued to engage in most of her pre-accident activities, despite doing so with pain. They rejected the claimant’s Form 1, as well as the invoicing provided by the claimant which appeared to be completed by the claimant rather than the service provider. The claim for an attendant care assessment was found not reasonable and necessary, since the claimant was not entitled to ACBs. Further physical therapy was not awarded based on the claimant’s evidence that it did not provide pain relief. Botox injections and psychological treatment were similarly rejected.

J.E.C.L. v. Allstate Insurance Company of Canada (17-006909)

The claimant sought entitlement to NEBs and a chronic pain assessment. Adjudicator Boyce concluded that the claimant’s activities remained largely the same after the accident. Although he suffered from pain, he was not practically prevented from the majority of his activities. Adjudicator Boyce also noted that the claimant failed to prove that his reported injuries related to the accident. The claimant’s ODSP file and disability tax application suggested long-standing impairments. The chronic pain assessment was awarded on the basis the claimant was experiencing continuous pain.

Applicant v. The Dominion of Canada General Insurance Company (17-006860)

The claimant sought entitlement to NEBs and various medical benefits. Adjudicator Kepman denied all claims. She held that the claimant’s post-accident presentation was largely the same as the pre-accident presentation, and that he was receiving disability support payments prior to the accident due to significant impairments and disabilities. The claimant’s wife assisted with most activities of daily living before the accident. The claimed treatment plans were not awarded because the claimant had not proven they were related to accident injuries.

P.F. v. Aviva Insurance (18-002458)

The claimant sought entitlement to NEBs. Adjudicator Boyce held that the claimant did not demonstrate a complete inability to live a normal life. Adjudicator Boyce held that while the claimant’s pain affected her activities of daily living, it did not prevent her from independent self-care or complete engagement in her daily activities. Adjudicator Boyce noted that the claimant reported that she performed some housekeeping, was independent with dressing, toileting, and showering, went grocery shopping, and drove local distances. As such, Adjudicator Boyce dismissed the claimant’s claim for NEBs.

M.G. v. RBC Insurance Company (17-007098)

The claimant disputed his entitlement to NEBs and various medical/rehabilitation benefits. The dispute proceeded by way of a written hearing. Adjudicator Boyce held that while the claimant suffered from pain, the claimant managed his pain and it did not prevent the claimant from engaging in self-care and in his daily activities. Adjudicator Boyce noted that the claimant could dress himself independently, walk for periods of time, and sit and stand without assistance. The claimant also reported that he could drive and use public transportation with pacing. Adjudicator Boyce held that while the evidence submitted by the claimant demonstrated that he suffered from pain and psychological impairments, it was insufficient to meet the high threshold of entitlement to NEBs. With respect to the disputed medical benefits, Adjudicator Boyce found the cost of physical rehabilitation treatment and the cost of a chronic pain assessment reasonable and necessary given the claimant’s pain complaints. As the claimant did not advance sufficient evidence that he was not independent with his self-care, Adjudicator Boyce found that the proposed attendant care assessment was not reasonable or necessary.

N.B. v. Aviva Insurance Canada (17-006736)

The claimant sought entitlement to NEBs and various medical/rehabilitation benefits. The hearing proceeded in-person and by writing. Adjudicator Boyce concluded that the claimant did not suffer a complete inability to carry on a normal life. Adjudicator Boyce noted that while the claimant’s injuries prevented her from returning to some of her pre-accident activities of daily living, she still went grocery shopping, attended Temple, and went swimming post-accident. As such, Adjudicator dismissed the claim for NEBs. With respect to the claimant’s dispute over medical benefits, Adjudicator Boyce awarded some of the disputed medical benefits. Adjudicator Boyce concluded that physical treatment was reasonable and necessary given the claimant’s reports of ongoing pain and because he had observed the claimant in discomfort during the hearing noting that the claimant needed to take breaks and used a cane and back brace at the hearing. Adjudicator Boyce dismissed the claimant’s claim for transportation, as this expense was not payable under the SABS and dismissed her claim for out of pocket expenses, noting that the insurer had paid in full all reasonable out of pocket expenses.

F.F. v. Aviva Insurance (17-005772)

The claimant sought entitlement to NEBs. Adjudicator Ferguson held that the claimant did not meet the “complete inability” test. He found the IE reports persuasive and noted that the claimant did not make any substantive criticism of the IE reports with respect to methodology or the characterization of his self-reporting. Furthermore, assertions in the claimant’s reply submissions were inconsistent with his self-reporting.