Category: Non-Earner Benefits

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.

C.N. v. Aviva General Insurance (19-004405)

The retired claimant sought entitlement to NEB. He argued that the accident had exacerbated a previously asymptomatic right shoulder injury. He claimed due to the accident he suffered neck, right shoulder and lumbar spine pain that affected his ability to engage in his activities of daily living. However, he did not make any submissions on the activities affected or how his injuries impacted his activities of daily living. Vice Chair McGee found there was clear evidence that the claimant had a pre-existing shoulder injury that was causing his pain, but the claimant’s self-reporting and the clinical notes and records of his health care providers suggested he had a minimal level of impairment relative to his pre-accident level of function. Vice Chair McGee concluded that the claimant was not entitled to non-earner benefits or interest as he failed to show that he met the criteria for entitlement.

C.J. v. Aviva Insurance Canada (18-007905)

The claimant sought entitlement to NEBs. The claimant submitted that virtually all her activities of daily living were affected by the accident. She was unable to perform her self care, cultural homemaking activities, socialize, or go to the gym, causing her weight gain and affecting her ability to have a child – all contributing to the break-down of her marriage. A month after the accident, the claimant’s niece moved in with her and would do the cooking, cleaning, bathing and grooming. The claimant submitted that physiotherapy did not help much and her anxiety remained “through the roof”. However, the claimant did not submit any expert medical evidence, or even a family doctor’s letter or disability note, that supported her claim. The medical evidence from her family doctor only contained a few entries mentioning the index accident and those attendances contradicted the claimant’s statement during her IE. The only medical evidence that meaningfully supported the claimant was the psychological IE, which diagnosed her with an “Adjustment Disorder with mixed anxiety and depressed mood; specific phobias, vehicular” but the doctor opined that she did not suffer a complete inability to carry on a normal life. The other IE reports also found that the claimant did not suffer impairments that would prevent her from conducting her daily activities. Adjudicator Shapiro accepted the IE reports as they were unchallenged by conflicting medical reports or records, appeared logical on their surface, and consistent with other evidence. The insurer further argued that the evidence the claimant did present was not reliable as she had provided many different accounts of many different accident related and life events. Adjudicator Shapiro agreed with the insurer as the volume of inconsistent information in the record was striking and extensive, across many different subjects. In conclusion, Adjudicator Shapiro found that the claimant’s testimony was not reliable, and when considered against all of the inconsistences, lack of medical support, and missing evidence, Adjudicator Shapiro had strong doubts that the claimant suffered a complete inability to carry on a normal life and she was not entitled to NEBs.