Category: Non-Earner Benefits

Ruchlemer v. TD Insurance Meloche Monnex (20-005381)

The insurer raised a preliminary issue and argued that the claimant was barred from applying to the LAT for failure under s. 55 and s.44 of the SABS to cooperate with an IE assessor. Secondly, the insurer argued that the claimant did not suffer a complete inability to carry on a normal life. The claimant argued that she “became ill or unwell” during the assessment and was unable to participate, and that she did suffer a complete inability to carry on a normal life. The insurer had arranged for an occupational therapy IE to address NEBs. When the OT arrived at the claimant’s resident, she was informed that the claimant was not home. After several unsuccessful attempts to ascertain where the claimant was, the OT was able to speak to the claimant by cell phone and was informed that the claimant and her husband “were driving back from Wasaga Beach and stuck in traffic”. The assessment proceeded, although later than scheduled and was modified to a joint assessment with the claimant and her husband, rather than the back-to-back assessments originally scheduled. After around two hours, the claimant stated she was feeling unwell and requested that the balance of the assessment be rescheduled. The insurer agreed to reschedule the assessment and it was continued on June 27, 2018. The assessor noted that “Ms. Ruchlemer reported she felt unwell and was experiencing severe back pack pain and headaches, and again requested the assessment be rescheduled.” The assessor also reported that the claimant refused to participate in the functional portion of the assessment. Vice-Chair Flude noted a previous insurer’s report from two months prior, in which the assessor noted that the claimant performed tasks, albeit with both pain and difficulty. Based on the evidence, Vice-Chair Flude opined that it was reasonable for the claimant to refuse a physical exam that may cause her pain, and that a refusal to participate in those circumstances did not amount to a refusal to cooperate entirely with the assessment. The preliminary issue was dismissed. In terms of NEBs, Vice-Chair Flude opined that the claimant did not meet the complete inability test as she still traveled out of town to visit relatives, traveled internationally, went to restaurants and socialized, and the extent that she reported a decline in these activities would not amount to a complete inability to carry on a normal life as defined in the SABS.

Hilaire v. Sonnet Insurance Company (20-006329)

The claimant filed a LAT Application disputing five OCF-18s for physiotherapy services, the MIG and entitlement to NEBs. The insurer requested repayment of NEBs in the amount of $6,105.00 under s. 52 of the SABS on the basis that the benefit was paid in error. The insurer argued that it erroneously paid the claimant NEBs between May 19, 2019 and January 5, 2020, and had properly requested repayment in the amount of $6,105.00, in addition to interest owing. The claimant had returned to work full-time a few days following the accident. On July 24, 2018, the insurer received an OCF-3 and requested that the claimant complete an OCF-10. On September 5, 2018, the claimant submitted a second OCF-3 supporting IRBs, but not NEBs. No OCF-10 was submitted as requested. On July 28, 2019, the claimant submitted an OCF-10 electing NEBs. In response, the insurer paid NEBs in the amount of $13,468.00. Upon review of the file, the insurer realized that the claimant was not entitlement to an NEB and requested repayment in the amount of $6,105.00, representing the amount that was paid in error over the previous 12 months. The insurer also requested an explanation in writing for the extensive delay in submitting the OCF-10. Adjudicator Corapi noted that the insurer had provided proper notice for repayment for the period stated, and had continued to follow-up with the claimant for further explanation and documentation to adjust the error, but received no response from the claimant. As the insurer’s letters and action were in compliance with s. 52, and the evidence showed that the payment was made in error, Adjudicator Corapi ordered repayment in the full amount sought of $6,105.00.

Smith v. Certas Direct Insurance Company (20-006605)

The claimant was involved in an accident in 2017. He applied to the LAT seeking CAT determination under Criteria 2,6, 7, and 8, as well as entitlement to NEBs, ACBs, and medical benefits. Causation was a key issue at the hearing. Adjudicator Hines held that the “but for” test was the appropriate test to determine causation. The crux of the dispute was whether the accident led to the progression of pre-existing peripheral arterial disease resulting in the above-knee amputation of the claimant’s right leg in September 2020. Adjudicator Hines found that the claimant was catastrophically impaired under Criteria 2 because the accident was a “but for” cause of the amputation, and entitled to NEBs, ACBs, chiropractic treatment, and the cost of CAT assessments. He was not entitled to the cost of a home exercise program. Adjudicator Hines allowed the insurer to rely on late-served CAT reports as they were responding to a new OCF-19 submitted by the claimant. Adjudicator Hines excluded an insurer addendum report as it was served two-days before the hearing and there was no reason why the causation issue addressed in the addendum report could not have been addressed in the initial report.

Valentine v AIG Insurance (20-008673)

A preliminary issue hearing was held to determine whether the claimant’s application for NEBs was statute-barred. The claimant was involved in a motor vehicle accident on December 5, 2017, and submitted an OCF-3 dated June 14, 2019, indicating that she did not suffer a complete inability to carry on a normal life. The insurer subsequently advised the claimant that she would not be entitled to an NEB benefit. The claimant submitted a second OCF-3, almost three years later indicating that she now suffered a substantial inability to carry on a normal life. The insurer argued that the claimant had failed to properly apply for NEBs as she did not submit a complete OCF-3 within 104 weeks of the accident. Adjudicator Grant agreed with the insurer, outlining that section 36(3) of the SABS provides that the entitlement period for the NEB commences once a completed OCF-3 is received. As the claimant failed to submit an OCF-3 which supported an entitlement to the NEB benefit within the prescribed time her claim could not proceed.

Ramnarine v. Aviva General Insurance (20-007108)

The claimant sought catastrophic impairment designation under Criterion 8 (marked impairment in Activities of Daily Living, Social Functioning, and Adaptation), as well as entitlement to Non Earner Benefits and various medical benefits. The claimant had a significant pre-accident medical history for chronic pain, Somatic Symptom Disorder, and Major Depressive Disorder. Adjudicator Hines found that the accident was not a necessary cause of the claimant’s physical and psychological impairments, nor did it result in the functional limitations which formed the basis for the claimant’s application for a CAT determination. Notably, psychological status reports prepared both shortly prior to and shortly after the accident noted very similar impairments and limitations. Given that “not much had changed post-accident”, Adjudicator Hines found that the claimant had not sustained a CAT impairment as a result of the accident, nor was he entitled to NEBs. Adjudicator Hines went on to find that a chronic pain program was reasonable and necessary as there was some exacerbation of his pre-existing chronic pain as a result of the accident. She also found an occupational therapy assessment to be reasonable and necessary to investigate the degree that the claimant required attendant care, if any, as a result of his accident-related impairments.

Bernard v. Unica Insurance Inc. (20-007082)

The claimant sought catastrophic impairment designation, as well as entitlement to non earner benefits, attendant care benefits, and housekeeping benefits. The claimant, who had a pre-existing history of ADHD and Asperger’s syndrome, suffered a comminuted fracture of his left tibia/fibula when he was struck by a car while riding his bicycle. The claimant underwent two surgeries, and suffered from ongoing pain and functional impairment. The parties agreed that from a physical perspective, the claimant’s injuries were significant, permanent impairments. The insurer’s IE assessors concluded that the claimant suffered a 44% WPI. The parties disagreed as to whether the claimant suffered impairments from a psychological perspective that met the criteria for a 55% WPI. Based on the 44% WPI, the claimant would require a further 19% WPI in order to meet the threshold established in the Combined Values Chart. Adjudicator Grant found that the evidence fell short of meeting the requirements to establish same. Notably, the family doctor records were largely silent with any notations that would support complaints or recommendations for psychological-based treatment or medication. Adjudicator Grant accepted that the claimant had established entitlement to NEBs, as his physical injuries significantly limited his ability to engage in almost all aspects of his activities of daily living. Adjudicator Grant found that attendant care services were not reasonable and necessary, and that the claimant was not entitled to housekeeping benefits as he was not found CAT.

Gore v. Rusk (2022 ONSC 2893)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. The Court dismissed the appeal, holding that both appeals were on matters of mixed fact and law and that there were no extricable legal error that had been demonstrated. The findings regarding each WPI allocation were findings of fact, as was the issue of whether combining certain ratings would entail double-counting or overlap. The Court also dismissed the argument that the reconsideration process was unfair because only one of the two adjudicators that heard the original matter conducted the reconsideration. The Court held that the Tribunal had broad authority to conduct reconsiderations, and that any adjudicator could hear the reconsideration, including the adjudicator or adjudicators hearing the original matter, or an entirely new adjudicator.

Brenner v. TD General Insurance Company (20-006389)

The claimant applied to the LAT seeking entitlement to non-earner benefits. She sustained serious injuries in an accident in 2013, when she was 12 years old. As she was not entitled to receive NEBs until she was 16, she first applied for and began receiving NEBs on May 23, 2017, at the rate of $320 per week. The claimant was involved in a second (minor) accident on May 31, 2018, while NEBs were still being paid in relation to the first accident. The insurer terminated NEBs for the first accident on July 4, 2018, based on IE opinions. The insurer then began paying NEBs for the second accident at the rate of $185 per week and continued to pay NEBs up to the full two-year mark provided by the SABS. At the hearing, the claimant sought entitlement to NEBs in the amount of $320 per week for the period of July 4, 2018, to date and ongoing. She submitted that but for the first accident, she would not have sustained her impairments and would not have been entitled to NEBs as a result of the second accident. Vice-Chair Boyce found that the claimant was entitled to NEBs at the rate of $320 per week for the period of July 4, 2018 to October 31, 2019, as she continued to have a complete inability to carry on a normal life as a result of the 2013 accident during this time.

Shen v. Aviva General Insurance Company (20-000662)

The claimant applied to the LAT seeking entitlement to NEBs and chiropractic services proposed in one OCF-18. Pursuant to section 36(4) of the SABS, the claimant argued that the insurer was required to pay for NEBs as a result of a failure to reply to an OCF-3 within 10 days and a failure to provide adequate medical and other reasons why it determined the claimant was not entitled to NEBs. Alternatively, the claimant argued that NEBs were payable as a result of failure to provide s. 44 reports within 10 days of receipt of the reports, as required by section 36(7) of the SABS. The insurer argued that the claimant failed to comply with section 33 requests for medical records and was not entitled to any amount for NEBs. Adjudicator Grant found that the claimant was in non-compliance with section 33, having failed to comply with all reasonable section 33 requests up to the time of the hearing, and was not entitled to payment of NEBs. Adjudicator Grant also found that the section 33 requests were made in compliance with section 36(4) of the SABS. Adjudicator Grant further found that the medical and other reasons in the s. 44 notice of examination were sufficient and the claimant failed to provide compelling evidence that the insurer was required to pay NEBs for any period of alleged s. 44 non-compliance. It was noted that the claimant attended all of the s. 44 assessments, and if there was an issue with reasons for the examination, she could have requested further information from the insurer prior to attending. The claimant was also found not to meet the complete inability test for NEBS. The claim for NEBs was dismissed, but the claimant was entitled to the chiropractic treatment.

Fahritdinov v. Aviva General Insurance (19-009897)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Norris concluded that the claimant was not entitled to the benefits claimed. The claimant sustained injuries to his neck, shoulder, back, and knee as a result of the accident and required surgical intervention. Adjudicator Norris found that while the claimant may have experienced some changes to his life, he failed to demonstrate that he suffered a complete inability to carry on a normal life as a result of accident-related impairments. Thus, the claimant was not entitled to NEBs. Similarly, the claimant required attendant care services immediately following the June 20, 2018 surgery on his right knee. However, Adjudicator Norris found that the claimant had recovered from the surgery and no longer needed the assistance claimed. There was nothing in the evidence to suggest that the benefit was incurred, or that it was not incurred due to the insurer unreasonably withholding payment. There was a difference between what the Form 1 said and what the claimant reported to his assessors regarding his personal care abilities. He reported that he showered and completed most of his housekeeping and home maintenance tasks independently and that he had no limitations with respect to personal care. The application was dismissed.