Mais v. Aviva Insurance Canada (19-008068)

The claimant disputed his entitlement to NEBs. The insurer requested that the matter be dismissed due to the claimant’s failure to provide documents that had been ordered produced at the Case Conference, and for failure to make written submissions for the hearing. The preliminary motion was dismissed, but Adjudicator Farlam held that the claimant failed to prove entitlement to NEBs due to the lack of submissions.

A.C.G. v. Aviva Insurance Company (19-004820)

The claimant sought entitlement to NEB, physiotherapy treatment, and a chronic pain assessment. Vice Chair McGee found that the claimant sustained an impairment that continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Vice Chair McGee assigned greater weight to the activities that the claimant identified as being important to her pre-accident life. Also, Vice Chair McGee placed considerable weight on the clinical notes and records of the claimant’s treating physician of many years which contained frequent notations of concern over the claimant’s inability to cope as a result of the accident. Further, the factors from Heath v. Economical made clear that a claimant who merely “goes through the motions” cannot be said to be “engaging in” an activity. The factual record showed a young woman “going through the motions” of caring for her children and herself in the face of incapacitating mental illness and persistent physical limitations. Therefore, the claimant was found to suffer a complete inability to carry on a normal life as a result of the accident and her accident-related incapacity was fundamentally psychological in nature. With respect to the disputed medical benefits, Vice Chair McGee held that the evidence did not demonstrate that the disputed treatment plans were reasonable and necessary. While there was evidence that the claimant found physical therapy helpful in providing temporary pain relief, there was no evidence as to her program in physical therapy, or how well her treatment goals were being met. Moreover, the claimant’s pain complaints in themselves did not warrant a diagnosis of chronic pain syndrome nor investigation by a chronic pain specialist.

K.A. v. Intact Insurance Company (19-004459)

The claimant was in an accident in May 2017. He submitted an Election choosing NEBs in July 2018. He submitted an OCF3 supporting NEBs in September 2019, more than 104 weeks after the accident. The insurer denied entitlement to NEBs based on the failure to provide an OCF3 within 104 weeks of the accident. The claimant argued that he should be excused from submitting a late OCF3 because he was self-represented at the time. Adjudicator Boyce agreed with the insurer that section 36 provided no exceptions to the requirement than an OCF3 must be submitted before payment of NEBs could begin. Because the OCF3 was submitted after the 104 weeks of eligibility, no NEBs would be payable. The claimant’s reason for the late OCF3 was irrelevant.

D.A.S. v. Western Assurance Company (19-010526)

The claimant applied to the LAT for NEBs. The claimant’s OCF3 indicated that she met the tests for IRBs and NEBs. The insurer requested an election pursuant to section 35 of the SABS. The claimant did not return the election and instead applied to the LAT two years later. About six months into the LAT proceedings, the claimant submitted an election for NEBs. The insurer argued that because the election was not submitted prior to the LAT application, there was no dispute between the parties that could be adjudicated. Vice Chair McGee agreed with the insurer and dismissed the claim. She held that the claimant’s failure to submit an election prevented the insurer from property adjusting the claim, and did not give the insurer the opportunity to approve or deny the benefit. Without a denial, there was no dispute for the Tribunal to adjudicate.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

Amitofski v. Traders General Insurance Company (19-008148)

The claimant sought entitlement to NEBs and further physiotherapy treatment. Adjudicator Johal dismissed both claims. He held that the claimant failed to provide evidence of her pre-accident and post-accident activities, so the Tribunal could not consider what change was caused by the accident. He also noted that the claimant was on ODSP for 20 years prior to the accident for previous injuries and impairments. The claimant failed to address two earlier motor vehicle accidents and their effect on her normal life. The claim for further physiotherapy was also denied. The claimant did not provide any evidence from her family physician or treatment providers to support the goals of further passive therapy.

Marca v. Aviva Insurance Company (19-004839)

The claimant sought entitlement to NEBs, a medical benefit for physiotherapy services, interest on overdue payment of benefits, and an award. The claimant argued that she had partially resumed some activities post-accident but not at all. The claimant also argued that even though she had returned partially to her personal care, she experienced pain when performing these activities. Adjudicator Farlam found that the claimant was not entitled to an NEB for a number of reasons. The first was that the claimant’s self-reporting of her post-accident capabilities in the OCF-12 did not establish a complete inability to carry on a normal life as a result of the accident. The claimant indicated that she could “partially” do all of her pre-accident activities except washing floors, sewing, dancing and dance instructing. The Disability Certificate was given little weight given the lack of detail and explanation that the disability was temporary. The rest of the records put forward did not establish that the claimant was completely unable to carry on a normal life and only showed minor injuries. With respect to the disputed treatment plan, the claimant submitted that the treatment plan was reasonable and necessary to deal with her pain, help regain strength and improve her range of motion. The insurer argued that the treatment plan was not reasonable and necessary because the claimant, by having already received rehabilitation treatment, had achieved the plan’s proposed goals. Adjudicator Farlam found that the disputed treatment plan was reasonable and necessary, in part. The claimant had experienced enough improvement as a result of this treatment that it was reasonable and necessary to allow her treatment to be continued and the overall costs of achieving her goals was reasonable. However, Adjudicator Farlam agreed that the insurer was not required to pay for the assessment and two treatment sessions that were incurred before the plan was submitted.