Category: Non-Earner Benefits

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.

Applicant v. TD General Insurance Company (16-000134 and 16-000646)

Executive Chair Lamoureux was asked to reconsider two decisions in which the claimant was found MIG and found not entitled to NEBs. The applicant argued that “the entirety” of his evidence was “not considered at all.” Similarly, in his request for reconsideration of NEBs the applicant argued that his “evidence was not considered at all or put before the [Tribunal].” Executive Chair Lamoureux rejected both requests for reconsideration, noting that the adjudicator had considered evidence submitted by both parties, and that there was no requirement that the adjudicator mention each record or documents put before the Tribunal.

M.Y. v. Allstate Insurance Company of Canada (16-002740)

The claimant sought entitlement to non-earner benefits. The insurer resisted the claim on two grounds: (i) the claim was limitations barred, and (ii) a claim for income replacement benefits precluded a non-earner benefits claim. Adjudicator Hines noted that the claimant received income replacement benefits which were ultimately stopped in August of 2014 due to her return to work. The claimant argued (and the insurer conceded) that the denial by the insurer was legally incorrect, in that, it indicated the claimant was ineligible for non-earner benefits given she qualified for income replacement benefits. Adjudicator Hines noted that although the denial was legally incorrect, it was still a clear denial of benefits triggering the limitations period. The insurer also argued that pursuant to section 12 of the SABS a claim for non-earner benefits cannot be allowed since a pre-requisite is that one must not qualify for income replacement benefits. Since the claimant failed to provide persuasive evidence on the subject, and the insurer clearly established the claimant qualified for income replacement benefits, the non-earner benefits claim was precluded.

A.W. v. Cooperators General Insurance Company (16-000283)

The claimant sought entitlement to non-earner benefits as well as a number of treatment plans. The insurer took a MIG position and also noted that the initial OCF-3 did not support an NEB claim. Although a subsequent disability certificate was submitted supporting NEBs, no further medical evidence was provided. On review, Adjudicator Pay concluded that the claimant was not entitled to NEBs or the disputed treatment plans.

Applicant v. Unifund Assurance Company (16-000879)

The claimant sought an order for NEBs, and medical benefits. As a preliminary issue, the insurer sought the exclusion of documents not produced in accordance with the Case Conference Order. Adjudicator Truong held that the Tribunal could set deadlines that were more stringent than those in the LAT Rules. The documents were excluded and the claims for NEBs and medical benefits were dismissed.