Category: Non-Earner Benefits

Applicant v. Royal and Sun Alliance (17-003732)

The minor claimant sought entitlement to NEBs, and four treatment plans. The insurer argued that the claim for NEBs was time barred, and that the claimant’s injuries fell within the MIG. Adjudicator Hines held that the two year limitation period did not apply to the minor claimant until she hit the age of majority. She also held that the claimant’s mother was not deemed a litigation guardian by virtue of filling out SABS forms for the claimant. In terms of NEB entitlement, Adjudicator Hines held that the claimant failed to prove a substantial change in her life following the accident, and raised concerns about many inconsistencies in the claimant’s reporting. In terms of the medical benefits, Adjudicator Hines concluded that the claimant’s injuries were minor in nature, and that the treatment plans were therefore not payable.

W.C.C. v. Allstate Canada (17-001363)

The claimant sought entitlement to non-earner benefits, which had been denied by the respondent on May 22, 2013, and entitlement to two treatment plans. Adjudicator Daoud dismissed all the claims, finding that the claimant was limitation barred from disputing the denial of non-earner benefits and that the claimant had not proven that the disputed treatment plans were reasonable and necessary. The claimant argued that the two-year limitation period should be extended or should not apply for a number reasons, which were all rejected by Adjudicator Daoud. Adjudicator Daoud held that (a) an insurer’s denial of a benefit, even if it is legally incorrect, will trigger the two-year limitation clock; (b) the 26-week waiting period for NEBs is not in reference to entitlement but to when NEBs are payable; and (c) a benefit that is prematurely denied by an insurer may still be considered proper and trigger the two-year limitation period.

Z.A. v. Certas Direct Insurance (17-003297)

The claimant, who was catastrophically impaired in an earlier accident, sought entitlement to NEBs and treatment plans for medical marijuana and osteopathic treatment in relation to a subsequent accident. Adjudicator Go found that the claimant was entitled to the cost of the two disputed treatment plans plus interest, but he was not entitled to NEBs. Adjudicator Go noted that the evidence relied on by the claimant in the claim for NEBs, an OCF-3 by an OT who assessed the claimant once, a two-line report by the family doctor, and the claimant’s oral testimony given at the hearing, was less persuasive than the evidence presented by the insurer, which included IE physiatry and in-home assessment reports which addressed the claimant’s pre- and post-accident activities.

Applicant v. Aviva Insurance Canada (17-001414)

The claimant sought entitlement to NEBs, treatment outside the MIG and entitlement to seven treatment plans. Adjudicator Watt dismissed the claimant’s claim for NEBs and concluded that the claimant’s injuries fell within the MIG. As the claimant’s injuries were found within the MIG, Adjudicator Watt found that the disputed treatment plans were not payable. With respect to the claim for NEBs, Adjudicator Watt relied on the surveillance report, the claimant’s testimony and the medical reports filed to conclude that she did not meet the NEBs disability test. With respect to the MIG, Adjudicator Watt concluded that the claimant failed to submit any evidence that she had a pre-existing medical condition to prevent her from reaching maximum recovery under the MIG and concluded that her injuries fell within the MIG definition.

Applicant v. Certas Direct Insurance Company (17-001627)

The claimant sought entitlement to 15 treatment plans, non-earner and attendant care benefits. The insurer paid the non-earner and attendant care benefits for two years, before stopping both with IE reports. The insurer, in its written submissions, reversed its position on medical benefits, and ultimately approved the disputed treatment plans. However, Adjudicator Susan Sapin determined the withholding of the treatment amounted to a special award and awarded five percent of the disputed quantum, plus special award interest. On review of the medical documentation, as well as an analysis of the claimant’s pre- and post-MVA lifestyle, along with finding favour in the claimant’s subjective reports, it was held that the claimant suffered a complete inability to carry on a normal life and was therefore entitled to ongoing NEBs. As it pertained to the claim for attendant care benefits, Adjudicator Sapin determined that the claimant was entitled to a reduced Form 1 quantum, as the claimant failed to demonstrate proof of incurred expense necessary to claim the full amount. Although the insurer sought to quash the claimant’s ongoing attendant care benefits as premature, Adjudicator Sapin held that the claimant needed to dispute the denial of attendant care within the 104 week period, or else forfeit the claim beyond the 104 week due to a possible limitations deadline. On review, it was determined the claimant was entitled to an increased quantum beyond the 104 week cut-off; however, the claimant would first need to apply for, and be designated, catastrophically impaired. Interest on all payable benefits was also awarded.

Applicant v. TD Insurance Meloche Monnex (17-000640)

The claimant sought entitlement to NEBs, removal from the MIG, and two treatment plans. Adjudicator Neilsen first exclude one report submitted by the claimant because it was given to the insurer 10 days prior to the hearing. In terms of the benefits in dispute, the adjudicator concluded that the claimant failed to adduce sufficient evidence supporting a pre-existing condition, psychological impairments, or chronic pain. She noted that chronic pain was not the same as chronic pain syndrome, and that pain does not take a person out of the MIG unless it is functionally disabling. The adjudicator also concluded that the claimant did not suffer a complete inability to live a normal life.

M.K. v. Aviva Insurance Company (17-003608)

The claimant sought entitlement to NEBs, removal from the MIG, and one treatment plan. The insurer argued that the claimant failed to attend an IE. Adjudicator Watt agreed that the claimant failed to attend a scheduled IE, and he therefore could not dispute his entitlement to the denied treatment plan. In terms of NEBs, the adjudicator held that the claimant failed to submit sufficient evidence supporting his claim (the claimant had returned to work, and made very few complaints to his family doctor). The claimant’s injuries were found to fall within the MIG.

J.N. v. Aviva General Insurance Company (17-000518)

The claimant sought entitlement to NEBs and the cost of an in-home assessment. Adjudicator Truong dismissed the claim for NEBs, but awarded the in-home assessment. She found the reports by the claimant’s assessors to be contradictory and unhelpful in supporting the NEB claim. There were also injuries that the claimant’s assessor tried to link to the accident, but for which no persuasive evidence was put forward. There were also inconsistencies in the claimant’s evidence regarding her functionality. In terms of the in-home assessment, Adjudicator Truong found it payable because the claimant had been removed from the MIG.

Applicant v. Aviva Insurance Canada (17-002465)

The insurer argued that the claimant was barred from seeking NEBs due to her failure to submit a Disability Certificate. Adjudicator Sewrattan rejected the insurer’s position and held that the claimant likely had submitted a Disability Certificate. He relied upon a billed invoice from the clinic showing that a Disability Certificate had been completed. He also relied upon the “lack of organization” with regard to the insurer’s physical file. The adjudicator reasoned that it was likely that the claimant had submitted a Disability Certificate, and that the insurer had misplaced it.

Applicant v. Unifund (17-000982)

The claimant sought entitlement to NEBs, removal from the MIG, and further medical benefits. The insurer argued that the claimant was barred from seeking NEBs due to the limitation period. Adjudicator Harmison accepted that the insurer had denied NEBs more than five years prior, and that the denial was clear and unequivocal. In terms of the medical benefits claim, the adjudicator held that the claimant failed to prove that his injuries were outside of the MIG. The adjudicator placed significant weight on the records from the family physician, which showed only one entry referring to the accident, and no reports of psychological injury.