O.D. v. Unifund Assurance Company (16-004399)

The claimant applied for entitlement to non-earner benefits, which was rejected by the insurer. Adjudicator Treksler denied entitlement to non-earner benefits reasoning that the claimant had not submitted sufficient evidence of the activities she could no longer perform, and which activities were important to her prior to the accident. She also noted that the submission of a Disability Certificate was not sufficient on its own to support a claim for non-earner benefits.

R.S. v. Aviva Insurance Canada (16-003141)

The claimant sought entitlement to NEBs. As a preliminary issue, the claimant argued that the insurer’s late surveillance and IE reports should not be considered by the LAT. Adjudicator Sewrattan allowed the materials to be admitted. In terms of the NEB claim, Adjudicator Sewrattan concluded that the claimant had not proven entitlement because he led no evidence about the time he spent on each of his alleged pre-accident activities (he simply listed a series of activities by way of affidavit). Without knowing which activities the claimant spent more time on, Adjudicator Sewrattan was unable to determine what were “substantially all” of the claimant’s pre-accident activities.

H.W. v. Intact Insurance Company (16-000347)

The claimant sought entitlement to non-earner benefits. Adjudicator Theoharis dismissed the claim, reasoning that the claimant failed to demonstrate that the accident had resulted in the claimant being continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged in before the accident. Of particular note was the claimant’s extensive pre-accident medical restrictions and disability benefits (CPP, WSIB, ODSP). Although the claimant did sustain injuries in the accident, she was still able to engage in many of the activities that were important to her prior to the accident.

L.D. v. Aviva Insurance Canada (16-003010)

The claimant sought entitlement to non-earner benefits and 11 treatment plans. On review of the medical evidence, Adjudicator Hines awarded five treatment plans. Additionally, Adjudicator Hines ruled that the mere filing of a disability certificate was insufficient to demonstrate entitlement to non-earner benefits; NEBs were denied.

M.S. v. Unifund Assurance Company (16-001849)

The claimant sought entitlement to NEBs and removal from the MIG. Adjudicator Belanger-Hardy denied all claims. First, she held that the claimant failed to adduce sufficient evidence of the details of his pre-accident lifestyle and activities to establish his eligibility to NEBs. Second, the claimant did not adduce sufficient evidence that he sustained a non-minor injury in the accident, or that he suffered a pre-existing medical condition that would prevent maximum medical recovery under the MIG. In particular, Adjudicator Belanger-Hardy wrote that the claimant mentioning “back pain” or “backache” to his physician on one pre-accident visit did not amount to compelling evidence of a pre-existing condition, nor did experiencing pre-accident cardiac conditions.

Applicant v. Aviva Insurance Company (16-000670)

The claimant sought entitlement to non-earner and medical benefits. The insurer asserted a MIG defence. Adjudicator Truong considered the claimant’s testimony regarding her pre- and post-MVA life, which included an international flight to Norway and Sweden for approximately 2 weeks. Adjudicator Truong also reviewed surveillance footage and concluded that the claimant did not suffer a complete inability to carry on a normal life. Furthermore, on review of the medical evidence, the claimant’s injuries were said to be minor – the treatment plans were deemed not reasonable and necessary.

Applicant v. Allstate Canada Group (16-002892)

In this preliminary motion, the insurer sought an order that the claimant was barred by the limitation period from seeking NEBs. The insurer also argued that the period for NEB entitlement did not commence until a completed disability certificate was received almost two years after the accident. Adjudicator Purdy first held that the claimant was not barred from seeking NEBs by the limitation period. She noted that section 64(8) of the SABS deems a mailed document to be received five days later, meaning the LAT application was filed in a timely manner. Second, Adjudicator Purdy relied upon FSCO case law and held that the insurer had sufficient information within a month of the accident to know that the claimant was applying for NEBs.

F.B. v. The Dominion of Canada General Insurance Company (16-002742)

The claimant sought entitlement to attendant care, non-earner, and medical benefits. On review of the medical documentation, as well as surveillance, Adjudicator Nicole Treksler found the claimant was not entitled to medical and attendant care benefits. The applicant was seen as independent with self-care making attendant care benefits not reasonable; similar analysis was conducted for the disputed medical benefits. The insurer submitted that non-earner benefits were not payable prior to a disability certificate. Adjudicator Treksler noted that per section 36, benefits are not payable prior to an OCF-3; moreover, on the merits the mere submission of an OCF-3 does not create an entitlement to non-earner benefits. Rather a disability certificate is a “a starting point for the [insurer] to investigate whether the applicant is entitled to the claimed benefit.” Costs were sought but not awarded.

D.D. v. The Dominion of Canada General Insurance Company (16-002750)

The claimant sought entitlement to medical, non-earner, and attendant care benefits. The insurer asserted a MIG position. Adjudicator Nicole Treksler was critical of the evidence tendered and noted the claimant did not specify which of the activities she was unable to perform after the MVA were important to her. Moreover, the claimant failed to provide clinical notes and records, or commission medical reports and, as a result, failed to meet the burden of proof to warrant removal from the MIG. Accordingly, all the claims were dismissed.

J.D. v. The Dominion of Canada General Insurance Company (16-002745)

The claimant sought entitlement to attendant care, non-earner, and medical benefits. The insurer denied the benefits and had placed the claimant within the MIG. On review of the medical documentation, Adjudicator Nicole Treksler found the claimant was not entitled to any of the benefits claimed. It was noted that non-earner benefits are not automatic upon the submission of a disability certificate; indeed, an OCF-3 is a “a starting point for the [insurer] to investigate whether the applicant is entitled to the claimed benefit.” Adjudicator Treksler also concluded the applicant had not met the onus of demonstrating that his injuries were not minor.