Category: Non-Earner Benefits

D.F. v. Gore Mutual Insurance Company (17-002799)

The claimant filed a LAT application on May 4, 2017, seeking entitlement to NEBs. A written preliminary issue hearing was scheduled to determine whether the claimant was precluded from bringing the application to the LAT, pursuant to s. 56 of the SABS, for failure to dispute the denial of benefits within two years. The insurer initially denied NEBs by Explanation of Benefits on March 13, 2015. The insurer denied NEBs based on the claimant’s non-supportive OCF-3 and on its determination that the claimant’s impairments were within the MIG. On May 6, 2016, the insurer responded to further submissions of the claimant by advising that his entitlement to benefits had not changed since March 13, 2015. The claimant was removed from the MIG in June 2016. At the hearing, the claimant submitted that the March 2015 Explanation of Benefits was a blanket denial of benefits that was insufficient to trigger the two-year limitation period. Adjudicator Watt disagreed and found that the 2015 denial met the requirements of the SABS and case law by clearly giving reasons for the denial of benefits and advising the claimant of the steps required by the claimant to dispute the decision within two years. Adjudicator Watt held that the claimant was statute barred from proceeding with the LAT application as the two-year limitation period had expired. The application was dismissed.

T.H. v. Aviva Insurance (17-001125)

The claimant sought entitlement to non-earner benefits. The insurer argued the claimant had not suffered a complete inability to carry on a normal life. Adjudicator Robert Watt applied the factors found in the Ontario Court of Appeal decision of Heath v. Economical and determined that the claimant failed to meet the burden of proof. The claim for benefits was dismissed.

Applicant v. Aviva Insurance Canada (16-003323)

The claimant sought entitlement to non-earner benefits, as well as a number of medical treatment plans. The insurer denied entitlement to all claims. Adjudicator Rebecca Hines reviewed the medical evidence and determined the claimant failed to prove the treatment plans were reasonable and necessary, and also failed to establish a complete inability to carry on a normal life. All of the claims were dismissed.

Applicant v. Allstate Insurance Company (16-004309)

The claimant sought entitlement to ongoing NEBs and two proposed treatment plans for physiotherapy. Adjudicator Baker denied entitlement to NEBs but awarded the treatment plans. In terms of NEBs, Adjudicator Baker wrote that the claimant had submitted only limited evidence about his pre-accident and post-accident life, which did not support entitlement to NEBs. He also wrote that the activities set out in the insurer’s IE (as reported by the claimant) suggested that the claimant did not suffer a complete inability to live a normal life. In terms of the treatment plans, Adjudicator Baker held that further physical therapy was reasonable and necessary for the claimant’s soft tissue pain particularly given that it allowed the claimant to be more active in her day to day tasks.

Applicant v. Certas Home and Auto Insurance Company (16-004624)

The claimant sought entitlement to non-earner benefits. On review of the limited medical evidence Adjudicator Gregory Flude determined the claimant had not satisfied the disability test for non-earner benefits. In making the determination, Adjudicator Flude indicated that submissions that were not supported by evidence were not considered. As an example, a chart purportedly identifying pre- and post-MVA functionality was assigned no weight as the functionality asserted made no reference to evidence for support. The claimant’s claim was dismissed.

E.D. v. Aviva Insurance Canada (17-002048)

The claimant was an elderly pedestrian knockdown and claimed entitlement to non-earner benefits, attendant care, and a number of medical treatment plans. Adjudicator Christopher Ferguson was critical of the evidence led by the claimant and remarked “The applicant made no submissions in this matter: she advanced no discussion or argument respecting the evidence that she provided, nor did she reply to the respondent’s submissions. Her evidence consisted of her personal affidavit, a chronic pain assessment, and treatment and assessment plans for medical benefits.” It was held that the claimant failed to provide sufficient evidence to justify entitlement to any of the benefits claimed.

N.R. v. Pembridge Insurance Company (16-003776)

The claimant sought entitlement to NEBs, ACBs, and medical benefits. Adjudicator Hans rejected all of the claims. In terms of NEBs, the adjudicator wrote that the claimant failed to provide evidence of his pre-accident activities and that without such information, entitlement to NEBs could not be proven. In terms of ACBs, the adjudicator wrote that the claimant’s expense forms did not prove that the attendant care services were incurred. In particular, the adjudicator was critical of the lack of specificity or details as to the days or services provided, and the fact that the expense forms were completed months after the services were allegedly provided. Finally, the medical benefits for dental work were denied because the claimant had not proven that he sustained a dental injury in the accident.

Applicant v. Aviva Insurance Canada (17-001939)

The claimant sought entitlement to NEBs, removal from the MIG, and an in-home assessment. Adjudicator Ferguson rejected all of the claims. In terms of NEBs, the adjudicator wrote that the claimant failed to adduce evidence as to his pre-accident activities and that without a baseline, entitlement to NEBs could not be proven. With regard to the MIG, the adjudicator wrote that the claimant failed to provide medical evidence proving that she suffered psychological injuries or chronic pain, or submit evidence that her pre-existing diabetes, arthritis, and obesity would prevent her from achieving maximal recovery under the MIG.

Applicant v. RBC General Insurance Company (16-004500)

The claimant sought entitlement to non-earner and medical benefits. On review of the evidence, Adjudicator Brian Norris concluded the claimant failed to meet the burden of proof for NEBs. After reviewing each treatment plan, it was held that all but one were not reasonable and necessary. The claims, with the exception of the one treatment plan, were dismissed.

M.T.R. v. Aviva Insurance Canada (17-001721)

The claimant sought entitlement to non-earner and a number of medical benefits. On review of the claimant’s evidence, Adjudicator Christopher Ferguson determined that claimant did not meet the onus to prove a complete inability to carry on a normal life. Moreover, the treatment plans claimed were considered not reasonable and necessary.