N.M. v. Aviva Insurance Canada (18-008710)

The claimant was involved in two accidents. He sought entitlement to NEBs for the second accident, and sought various medical benefits for both accidents. Adjudicator Paluch held that the claimant was entitled to NEBs up to the two-year mark because the insurer failed to properly stop entitlement. The insurer had stopped payment of NEBs after receiving paper review IEs, but the claimant had never received a notice under section 44 indicating that the paper review was taking place. Adjudicator Paluch found the insurer’s breach of sections 36 and 37 resulted in the claimant’s continuing entitlement to NEBs. The claimant was also awarded two treatment plans for physiotherapy for the second accident. Two claimed assessments were dismissed because they were completed before ten business days had elapsed after submission of the treatment plans, contrary to section 38(2).

Sookram v. Zenith Insurance Company (19-012732)

The claimant sought entitlement to NEBs, and seven medical benefits for various treatment and assessments. Adjudicator Watt dismissed all of the claims, holding that the claimant failed to prove entitlement. With regard to the NEB claim, Adjudicator Watt also noted that the claimant was employed at the time of the accident, and that he did not satisfy the element of the NEB test that required that he “”not qualify for an income replacement benefit””. The adjudicator wrote that the applicant should have proceeded with an IRB claim instead. He acknowledged the Court of Appeal’s reasons in Galdamez v Allstate, but wrote that the decision allowing employed persons to claim NEBs was limited to applicants whose job duties did not include mobility requirements, and where the job was not of great importance to the applicant’s pre-accident life.

S.B v. Aviva General Insurance Company (19-004142)

The claimant disputed entitlement to NEBs. The claimant outlined the activities that were important to him before the accident, such as caregiving and spending time with his grandchildren, fishing, hunting with his father and camping. The claimant had a number of pre-existing health issues, but was still able to participate in these activities. As a result of the accident, the claimant experienced additional restrictions that led to inabilities to engage in these activities. Adjudicator Neilson concluded that the claimant was entitled to NEBs. She noted that even though the activities important to the claimant were not strenuous, the claimant was already physically limited before the accident, and as such it did not take much injury from the accident to have a major affect on the claimant’s functional abilities. A special award was not granted, as the adjudicator found the insurer acted reasonably in relying upon the IEs in denying NEBs after six months of payment.

Chen v. Chubb Insurance Company of Canada (19-008582)

The claimant disputed her entitlement to NEBs, three medical benefits for treatment, and an attendant care assessment. Adjudicator Grant dismissed all of the claims. He found that the claimant was not prevented from engaging in substantially all of the activities in which she ordinarily had prior to the accident. The claimant had not provided a comparison of her pre- and post-accident activities, specifically on the amount of time spent on said activities, as well as the value and importance placed on each. The adjudicator also noted that the claimant had not provided any affidavits or oral evidence to speak to the Heath v Economical factors, and as such he only had the claimant’s assertions in the written submissions to rely on. Similarly, the claimant’s evidence did not support the need for further treatment, and the IE doctors had concluded that the claimant had reached maximum medical recovery. Finally, the attendant care assessment was not reasonable and necessary because the claimant had reported being independent with self-care.

Namasivayam v. Certas Direct Insurance Company (19-010862)

This was the claimant’s second LAT dispute. The claimant sought entitlement to NEBs, removal from the MIG, and various medical benefits. The insurer argued that the claimant could not re-litigate the applicability of the MIG. Adjudicator Farlam agreed with the insurer that the applicability of the MIG was res judicata and that the claimant could not seek the same relief that had been denied in the first hearing. Most of the claimant’s arguments were an attempt to re-litigate the same claim on the same facts. The claimant did not seek reconsideration or judicial review of the earlier decision, so it was a final judgment. This second LAT dispute was not to be used as a reconsideration or judicial review. All of the submissions that the claimant made in this dispute had already been considered in the earlier dispute. Because the MIG could not be re-litigated, the disputed treatment plans were also dismissed. Adjudicator Farlam denied the claim for NEBs. She held that the evidence showed the claimant remained able to complete housekeeping chores, was independent in personal care, and cared for her young child on her own. The claimant failed to put forward reliable medical evidence that she was prevented from carrying on a normal life.

Khashi v. Travelers Insurance Company of Canada (19-005457)

The claimant disputed his MIG determination and entitlement to non-earner benefits. With respect to the MIG, Adjudicator Norris found that the claimant’s psychological symptoms were sequelae of minor injuries and did not meet the threshold to warrant removal from the MIG. He noted that the psychological IE assessor’s conclusions aligned with the family doctor records, and found the section 25 pre-screening report unpersuasive, as it relied entirely on the claimant’s self-reported symptoms. With respect to NEBs, Adjudicator Norris determined that the insurer provided a valid denial, despite the reason being legally incorrect, because the denial was clear and unequivocal, included reference to the claimant’s right to dispute, and was made within the timelines prescribed by the SABS. He went on to conclude that the medical evidence failed to demonstrate that the claimant was continuously prevented from engaging in substantially all of his pre-accident activities, emphasizing the fact that the claimant missed no time off from his multiple jobs following the accident.

Jones v. Aviva Insurance Canada (19-013768)

The insurer requested reconsideration of a preliminary issue hearing in which the Tribunal found that the claimant’s application for a non-earner benefit was not barred pursuant to section 56 of the SABS. Vice Chair McGee dismissed the insurer’s request for reconsideration, on the basis that Rule 18 of the LAT Rules provides that the Tribunal will only reconsider a decision that finally disposes of an appeal. Vice Chair McGee noted that the preliminary issue decision was interlocutory in nature, and held that the Tribunal cannot grant reconsideration of an interlocutory order.

A.C. v. Aviva Insurance Canada (19-002793)

The claimant disputed her entitlement to NEBs and brought a claim for a special award. Adjudicator Shapiro found the claimant’s evidence was not consistent with a complete inability to carry on her pre-accident activities, which had been limited by a recent, prior unrelated fall, and did not establish that the motor vehicle accident was the triggering event for her psychological and alcohol-related concerns. Adjudicator Shapiro considered the “but for” test and noted that the claimant’s treatment providers did not indicate that the accident was a necessary cause of the impairments. At most, the accident resulted in soft-tissue injuries, some driving anxiety, and some residual pain, but not chronic pain syndrome.

Salim v. Aviva General Insurance (19-006944)

The claimant was involved in a serious accident. He was skateboarding and was hit by a vehicle and suffered nasal, left elbow, pelvic, and sacral fractures, and psychological injuries. The claimant applied to the LAT disputing entitlement to NEBs, ACBs, and the full cost of partially approved medical benefits. Adjudicator Farlam dismissed the claimant’s dispute in its entirety. With respect to NEBs, Adjudicator Farlam noted that the claimant travelled post-accident, resumed full-time education, and resumed his participation in sports including judo and wrestling. Adjudicator Farlam held that while the claimant required help with some self-care tasks and had ongoing physical and psychological limitations, he did not meet the NEBs disability test. With respect to ACBs, Adjudicator Farlam noted that the claimant reported that his family cared from him. However, the claimant did not submit proof of incurred expenses nor economic loss. Adjudicator Farlam noted that the claimant did not submit OCF-6s, receipts, invoices, or any other proof of incurred benefits. Adjudicator Farlam dismissed the claimant’s submissions that ACBs be “deemed incurred” as he did not believe that ACBs were reasonable and necessary in light of the 8 month delay in submitting a Form 1. With respect to the disputed medical benefits, Adjudicator Farlam opined that the claimant had not proven that the balance of the treatment plans were reasonable or necessary.

M.M. v. Royal & Sun Alliance Insurance Company of Canada (18-007290)

Vice Chair Flude released a preliminary issue decision that the claimant had filed his LAT application disputing the insurer’s denial of his entitlement to NEBs beyond the two-year limitation period. Following the preliminary decision, Vice Chair Flude gave the parties an opportunity to make submissions on section 7 of the LAT Act. Upon review of the submissions, Vice Chair Flude determined that section 7 of the LAT Act did not apply, because the Legislature’s action of moving the limitation period from the Insurance Act to the SABS and its omission of the words “or regulation” in section 7 of the LAT Act was intentional. He went on to note that even if he was mistaken in his interpretation of the LAT Act, the claimant had failed to establish that the justice of the case favoured the extension of the limitation period, and that he was barred from proceeding with his claim for NEBs as it was brought beyond the two year limitation period.