Category: Non-Earner Benefits

M.R. v Aviva Insurance Canada (17-005284)

The insurer denied payment for non-earner benefits. The applicant appealed and sought payment of NEBs. Adjudicator Sewrattan held that the applicant was not entitled to NEBs as she did not prove she was continuously prevented from engaging in substantially all of her pre-accident activities. The adjudicator relied on the applicant’s statements to IE assessors that she could complete her pre-accident tasks, albeit with pain. The adjudicator was not satisfied that the applicant’s pain practically prevented her from engaging in her pre-accident activities.

D.M. v Aviva Insurance (17-003463)

The claimant sought entitlement to NEBs, attendant care, two medical benefits, interest, and costs. Adjudicator Johal found the claimant’s complaints of pain to be credible, but did not find that his pain-related restrictions equated to a complete inability to carry on a normal life; as such, the claimant’s entitlement to NEBs was denied. However, Adjudicator Johal preferred the evidence of the claimant’s assessors with respect to his attendant care needs, and held that he was entitled to attendant care benefits. After a review of the medical evidence, Adjudicator Johal concluded that one of the disputed benefits for chiropractic treatment was reasonable and necessary, while another for occupational therapy services was not. Adjudicator Johal declined to award costs.

C.L. v. State Farm Insurance Company (16-003195)

The insurer sought reconsideration of the Tribunal’s award of ongoing NEBs. The Tribunal had found that despite the claimant’s ability to participate in most of her pre-accident activities, the claimant was so restricted that she could not be seen as engaging in those activities. The insurer argued that the Tribunal had failed to consider relevant evidence in coming to its conclusion and requested an order setting aside the decision. Executive Chair Lamoureux rejected the insurer’s request for reconsideration. She held that the Tribunal’s findings of fact supported the award of NEBs, and that it would be inappropriate for her to reweigh the evidence.

N.F. v. Aviva Insurance Canada (17-000456)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s failure to include a police report was not fatal to his application to the Motor Vehicle Accident Claims Fund. Executive Chair Lamoureux upheld the Tribunal’s decision. Despite an application being incomplete, section 32 triggered the insurer’s responsibility to determine whether a benefit was payable. Executive Chair Lamoureux referred to legislation and jurisprudence regarding priority disputes when concluding that applications could be considered complete if they were functionally adequate for their legislated purpose. Executive Chair Lamoureux further held that the insurer was precluded from taking the position that the MIG applied and that the disputed treatment plans were automatically payable. However, the claimant’s application for NEBs was dismissed for a lack of evidence establishing entitlement.

Applicant v. Northbridge Insurance Company (17-005435)

The claimant sought entitlement to NEBs. Adjudicator Mather was satisfied that the claimant suffered an aggravation of pre-existing neck and back pain, but concluded that the claimant had not proven that she met the complete inability test. The claimant remained independent in all aspects of personal care. She continued to provide childcare to her granddaughter. She was still seeing family and friends. She took multiple trips outside of her home town. There were also inconsistencies in the claimant’s evidence that contradicted reporting she had made earlier to assessors regarding her abilities.

S.M. v. Aviva Insurance Canada (17-003731)

The claimant sought entitlement to NEBs and medical benefits. Adjudicator Grant denied all of the claims. He concluded that the claimant’s evidence lacked specificity, and that her medical assessor’s opinions were not credible. He preferred the conclusions of the IE assessors, including the claimant’s self-reporting to the IE assessors that she was improving and returned to her own self-care.

D.C. v. Aviva Insurance Company (17-002921)

The claimant sought entitlement to NEBs, medical benefits, and the cost of various examinations. The insurer raised s. 55 and s. 33 defences. Pursuant to s. 55, Adjudicator Ferguson held that the claimant was barred from commencing part of the application as a result of his failure to attend IE assessments. He was only barred from pursuing the issues in dispute that were relevant to the IE assessments. Adjudicator Ferguson held that the claimant was entitled to NEBs for an initial period based on the insufficiency of the insurer’s  s. 35(1) notice; however, the insurer was entitled to withhold payment of NEBs during the period in which the claimant was not in compliance with s. 33 requests.

Applicant v. Certas Direct Insurance Company (16-003108)

The claimant sought entitlement to NEBs, ACBs, and a chronic pain assessment. The insurer argued that the claimant was barred from seeking the chronic pain assessment for failure to attend an IE assessment. Adjudicator Anwar found that the claimant was barred from pursuing the cost of the chronic pain assessment due to her nonattendance at a s. 44 assessment and because the LAT application was filed prior to the insurer providing a response to the proposed treatment. The adjudicator found that the claimant failed to prove that she sustained a complete inability to carry on a normal life as a result of the accident. In coming to this conclusion, Adjudicator Anwar noted that he found the records of the claimant’s family doctor more persuasive that the IEs and s. 25 medicolegal reports, the evidence of the claimant and her son, and the report of the family doctor prepared for the hearing.  The claimant was also not to be entitled to ACBs.

Applicant v. Royal Sun Alliance Insurance (17-001746)

The minor claimant was injured in an accident when he was six years old. He sought entitlement to NEBs after his sixteenth birthday. The insurer terminated NEBs after obtaining IE reports. Adjudicator Ferguson agreed with the insurer that the claimant did not suffer a complete inability to live a normal life. The evidence showed that the claimant was able to enrol in College, had average to good grades, played competitive sports, and worked full shifts as a labourer.

J.T. v RBC Insurance (17-005328)

The claimant sought entitlement to NEBs and interest. The insurer relied on the opinions of two IE assessors when concluding that the claimant did not qualify for NEBs. The claimant argued that the denial was invalid, as the assessors did not have an opportunity to review the claimant’s disability certificate. Adjudicator Watt disagreed with the claimant, noting that there was no requirement in the SABS to submit a disability certificate to an assessor. Upon reviewing the medical evidence submitted, Adjudicator Watt preferred the opinions of the insurer’s assessors and determined that the claimant was not entitled to NEBs or interest.