Category: Non-Earner Benefits

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.

A.M. v. Aviva Insurance Company of Canada (18-008059)

The claimant requested reconsideration of the Tribunal’s decision denying NEBs and holding the claimant in the MIG. Adjudicator Norris denied the reconsideration. The claimant argued the insurer gave no evidence to subject the claimant to the MIG and the insurer’s reports did not provide an opinion on the application of the MIG. The insurer submitted there was no evidence of any failure to impartially assess the evidence. Adjudicator Norris indicated there was no onus on the insurer to prove the claimant suffered a minor injury; the claimant had the burden of proving his case. Adjudicator Norris reviewed the evidence including the medical records of the claimant’s treating physicians, which he determined did not show any compelling evidence that the claimant should be removed from the MIG. In regard to the NEBs claim, the claimant argued that Adjudicator Norris had wrongly found that the claimant had failed to submit a disability certificate and there was evidence in the insurer’s materials it had been submitted. The disability certificate in question that was submitted entitled the claimant to NEBs. The claimant further argued that Adjudicator Norris had wrongfully found the insurer did not pay the benefit because it did not know when the disability certificate was submitted. The insurer argued that the NEB claim was considered and the evidence was weighed in its decision. Adjudicator Norris was unable to consider the disability certificate in the initial hearing as the claimant did not submit the disability certificate as evidence. The claimant’s reconsideration submissions confirmed that the disability certificate in question was completed by a different healthcare provider than his family physician contrary to the claimant’s claims in the initial hearing. The claimant failed to provide any information on when the second disability certificate was submitted, which would trigger the insurer’s obligations under s.36(4). In the initial hearing, Adjudicator Norris found the insurer did not have to pay NEBs immediately on receipt of the disability certificate and the insurer could request an IE. It appeared the insurer did request an IE. The claimant attended the IEs and the insurer relied upon those reports when it denied NEBs entitlement. The claimant submitted three documents to support his position that his injuries were outside of the MIG. Adjudicator Norris indicated none of those documents provided any compelling evidence that his injuries were minor. The claimant’s self-reported statements were discounted due to inconsistencies.

F.J. v. Aviva Insurance Canada (18-010144)

The claimant sought entitlement to NEBs and five medical benefits. Adjudicator Shapiro found that the claimant was entitled to three of the treatment plans, but not NEBs. In referencing Heath v. Economical, the adjudicator found that the claimant failed to show that she was continuously prevented from engaging in substantially all of her daily activities. She was able to continue virtually all of her pre-accident activities, albeit with some restrictions. The claimant was driving, walking, volunteering, and began her first paid-employment in ten years in the year following the accident. The claimant also argued that the insurer’s letter denying NEBs was insufficient under s. 36(4) of the Schedule. The adjudicator found that while better practice would have been for the insurer to summarize the medical findings in the denial letter, the inclusion of and referral to the medical report minimally satisfied the Schedule. If it had not, Stranges v. Allstate states that a defective notice would not automatically entitle the claimant to the benefit.

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.