Weathers v. Toronto Transit Commission Insurance Company Limited (20-006288)

In 2000, when the claimant was seven years old, he injured his knee while on a TTC bus. The claimant’s mother applied for NEBs on his behalf. The OCF-3 submitted by the claimant’s family physician did not support entitlement to NEBs. In 2001, the TTC sent correspondence to the claimant stating that NEBs were not payable until the claimant turned 16 years old, and that he did not meet the NEB test regardless. In 2010, when the claimant was 17 years old, the claimant’s mother requested that the matter be re-opened and that NEBs be paid. The TTC responded reiterating its earlier denial. In 2017, the claimant submitted an Election in support of NEBs. The TTC responded with copies of the earlier correspondence denying NEBs. In 2018, the claimant submitted a new OCF-3 supporting NEBs. The TTC assessed the claimant pursuant to section 36, and denied NEBs again based on the IEs. In 2020, the claimant applied to the LAT disputing NEBs. The TTC argued that the limitation period barred the claim. Vice Chair Boyce agreed with the insurer and held that the LAT dispute was barred. The TTC issued valid denials in 2001, 2010, and 2017. Without deciding which date specifically started the limitation period, the claimant initiated his LAT dispute more than two years of even the 2017 denial. Vice Chair Boyce declined to extend the limitation period using section 7 of the LAT Act. The accident was over 20 years prior; there were three valid denials over two decades; and the claimant took no steps to dispute entitlement in 2010 when he turned 16. Additionally, the TTC would be prejudiced in obtaining medical evidence and determining causation now 20 years after the accident.

Habte v. Aviva General Insurance Company (19-008941)

The claimant was injured in a 2017 accident. She applied to the LAT in 2019 disputing, among other things, NEBs. The insurer argued that the failure to submit an OCF-3 within the first 104 weeks barred the claim for NEBs. Adjudicator Lake dismissed the NEBs claim as it was not made in a timely fashion. An OCF-3 dated October 2018 was not submitted to the insurer until 2020, and the claimant failed to prove that it had been delivered at any time prior to 2020.

Randhawa v. Unifund Assurance Company (19-010821)

The claimant sought entitlement to NEBs up to the 104 week mark. Adjudicator Parish held that the claimant did not meet the disability test and dismissed the claim. She accepted that the claimant had psychological impairments, but that the impairments pre-dated the accident. She also made an adverse inference about the claimant’s occupational activities due to his failure to produce self-employment records. Adjudicator Parish also noted that the claimant’s self-reporting to his section 25 assessors and IE assessors did not appear honest or accurate, and that he overattributed the effects of the accident on his level of functioning. Adjudicator Parish also found that the insurer complied with section 37 in terminating NEBs, and that section 36 was not applicable as the claimant was receiving NEBs at the time IEs were requested and subsequently terminated.

Kechichian v. Primmum Insurance Company (19-008194)

The claimant sought entitlement to NEBs. The insurer argued that the limitation period barred the dispute. Adjudicator Lake held that the limitation period applied and that she did not have jurisdiction to extend the limitation period under the LAT Act. She also held that she did not have jurisdiction to apply the doctrine of equitable estoppel. The insurer had denied entitlement to NEBs in July 2016. The claimant did apply to the LAT within two years of the denial, but withdrew the LAT application while undergoing catastrophic impairment assessments. The insurer’s counsel at the time indicated that the insurer would not advance a limitation defence with regard to the issues in that first LAT dispute. Despite accepting that such agreement was made, Adjudicator Lake held that she did not have authority to apply equitable estoppel to prevent the insurer from relying on a limitations defence when the claimant reapplied to the LAT in 2019. Finally, Adjudicator Lake held that she did not have authority to extend the limitation period under the LAT Act.

Bansal v. Aviva General Insurance (19-013174)

The insurer denied the claimant’s claim for NEBs on the basis that he did not suffer from a complete inability to carry on a normal life. The claimant disagreed and applied to the Tribunal for dispute resolution. Adjudicator Paluch concluded that the claimant was not entitled to receive NEBs applying the principles outlined in Heath v. Economical. The evidence led at the hearing indicated that the claimant had a reduced ability to participate in the activities that he did prior to the accident, but he did not have a complete inability. Adjudicator Paluch stated that the claimant provided inconsistent testimony and a lack of medical documentation to support his entitlement to NEBs. Further, the IEs relied upon by the insurer were unrefuted. As a result, the claimant failed to meet the onus of providing on a balance of probabilities that he had suffered a complete inability to carry on a normal life as a result of the accident.

Wangden v. Economical Insurance (19-010637)

The claimant disputed entitlement to the MIG, NEBs, and various medical benefits. The claimant argued that they were entitled to payment of NEBs due to Economical’s failure to comply with the timeline under section 36(4). The insurer argued that the claimant was barred from litigating NEBs for failure to attend a scheduled IE to address the benefit. Adjudicator Mazerolle ruled that the claimant was not entitled to automatic payment of NEBs as the insurer had made a valid request under section 33 for a completed OCF-10 within 10 business days of receiving the OCF-1 and OCF-3, which extended the time to respond under section 36(4). In relation to the section 55 issue, the claimant argued that the insurer’s notice letter for the IE did not contain suitable “medical and other reasons” as set out in M.B. v Aviva. The insurer argued that the notice was the same as all other notices provided to the claimant over the course of the claim, yet there was only the one IE the claimant failed to attend. Adjudicator Mazerolle ruled in favour of the claimant, noting that the notice provided was insufficient as well as confusing to an “unsophisticated reader”. Adjudicator Mazerolle noted that even though the claimant did attend other assessments with similar notices, this did not affect the insurer’s responsibility to provide a proper notice. As such, the claimant was allowed to proceed with his claim for NEBs.

Chance-Guppy v. Aviva General Insurance Company (19-004820)

The insurer requested a reconsideration of a hearing decision in which the claimant was found entitled to NEBs with interest. The insurer argued, among other things, that the LAT erred by ordering payment of NEBs beyond the 104-week mark and erred in its application of the Heath test by not requiring the claimant to present quantitative evidence detailing her pre- and post-accident activities. Vice-Chair McGee granted the request for reconsideration in part. Vice-Chair McGee found that the Heath test requires a comparison of activities and circumstances before and after the accident that is qualitative, not quantitative, and that the LAT did not err in its application of the test. Vice-Chair McGee found that that hearing adjudicator had erred with regards to the period of entitlement to NEBS, and found that the claimant was to be entitled to NEBs up until the 104-week mark, pursuant to s. 12(3)(c) of the SABS.

Z.R. v. Gore Mutual Insurance (18-000017)

The insurer sought reconsideration of the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. Adjudicator Hines dismissed the reconsideration. She accepted that the Tribunal ought not to have counted 3 percent WPI for medication use because the medication did not have the effect of cancelling out the claimant’s sleep issues, depression or chronic pain. The AMA Guides requires that medication mask an impairment that could not otherwise be rated in order to count 3 percent WPI for medication. Adjudicator Hines rejected the insurer’s arguments regarding 2 percent WPI for sleep disorder, 10 percent WPI for occipital neuralgia, and 29 percent WPI for mental and behavioural disorder. Adjudicator Hines also rejected the insurer’s arguments regarding NEBs, holding that the Tribunal applied the correct test and that the Tribunal provided sufficient reasons to allow the parties to understand why it arrived at its result.

Terrio v. Aviva General Insurance (20-000524)

The claimant disputed entitlement to NEBs. The claimant had a number of pre-existing health conditions. The claimant’s affidavit indicated that she was independent prior to the accident, had managed her various medical conditions well, and was looking for employment. Adjudicator Farlam found that the documentary evidence did not prove the claimant’s position. The medical records showed her pre-accident conditions were poorly managed, that she was abusing medications, that she had been unemployed for almost 20 years, and there was no evidence of an ongoing job search. There was also insufficient evidence to establish that the new medical issues reported by the claimant were caused or aggravated by the accident to the extent that the claimant suffered from a complete inability to carry on a normal life. In fact, the claimant’s level of functioning was also found to have improved post-accident, as reported by the claimant to her family physician, noting work as a waitress and riding her bicycle. Surveillance showed the claimant cleaning a motorcycle, socializing with friends, and running errands.

Jones v. The Co-operators (19-013271)

The claimant applied to the LAT seeking entitlement to IRBs and medical benefits outside of the MIG. At the outset of the hearing, the claimant sought to change his claim for IRBs to a claim for NEBs. Claimant’s current counsel advised the LAT that he had not received the claimant’s file from a former counsel, and he had not been aware that the claimant had submitted an OCF-10 electing NEBs until he received the insurer’s hearing brief. The claimant relied on the Court of Appeal decision in Galdamez v. Allstate (2012 ONCA 508) for the proposition that an insured may qualify for IRBs but claim NEBs. Adjudicator Flude found the Galdamez decision to be distinguishable as it dealt with the previous version of the SABS, which did not provide for an irrevocable election of benefits (OCF-10). Adjudicator Flude denied the claimant the right to amend his application to advance a claim for NEBs, on the basis that it was barred because he qualified for IRBs (pursuant to s. 12 of the SABS) and because his claim for NEBs was brought beyond the two-year limitation period set out in section 56 of the SABS. Adjudicator Flude declined to extend the time for bringing the claim for NEBs under section 7 of the LAT Act, largely on the basis that the claim for NEBs was meritless. Adjudicator Flude found that the claimant was within the MIG and he was not entitled to IRBs. Adjudicator Flude also found that since the claimant did not report his pre-accident income to the CRA, the quantum of IRBs would have been zero if he satisfied the test for entitlement.