Category: Non-Earner Benefits

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.

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.