Category: Non-Earner Benefits

M.K. v. TD General Insurance Company (19-003616)

The claimant sought reconsideration of the Tribunal’s decision that she was statute-barred from proceeding with her application for NEBs because she did not appeal within the two-year limitation period. The claimant submitted her Reconsideration Request two days after the limitation period had expired, relying on the state of emergency arising out of the COVID-19 pandemic, and requested an extension of time. Adjudicator Grant denied the claimant’s request, noting that the claimant had not submitted any kind of evidence that the pandemic had in any way caused or contributed to the delay. Adjudicator Grant also found that, in any event, the claimant’s request for reconsideration was without merit. The Tribunal considered the evidence of submissions of the parties, and right found that the claimant’s applicable regarding NEBs was beyond the limitation period.

F.C. v. Aviva Insurance Canada (18-001359)

The insurer sought reconsideration of the Tribunal’s decision awarding NEBs and a treatment plan for failure to comply with sections 36 and 38, respectively. Adjudicator Boyce dismissed the reconsideration. He held that Stranges v Allstate was not good law in relation to the current version of the SABS, which required payment of NEBs until a proper denial is given to the claimant. He also rejected that the Tribunal should apply section 7 of the LAT Act in the insurer’s favour to cure the lack of NEBs denial.

A.D.W. v. Aviva Insurance Company (18-012150)

The claimant sought entitlement to NEBs and one treatment plan for physiotherapy. Adjudicator Watt dismissed both claims. The claimant did not provide evidence of the comparison of his pre-accident and post-accident life. Further, the claimant admitted to doctors that he was independent with personal care, gardening, cooking, and yard work. With regard to physical treatment, Adjudicator Watt held that there was no evidence of the need for further facility based treatment.

C.G. v. The Guarantee Company of North America (17-007300)

The claimant had a number of pre-accident injuries and impairments. She suffered an exacerbation of her conditions in the accident. She sought entitlement to NEBs, removal from the MIG, and two assessment costs. The insurer argued that the claimant’s impairments were not caused by the accident. Adjudicator Johal accepted that the accident did cause an exacerbation of pre-existing injuries that would otherwise have not occurred. She also concluded that the claimant suffered chronic pain as a result of the accident given that her pain persisted for more than six months, and her injuries therefore did not fall within the MIG; this conclusion was made without a specific diagnosis of chronic pain. The claimed psychological assessment was awarded, but the denied in-home assessment was not as the medical evidence suggested that the claimant remained independent with personal care. The claim for NEBs was also dismissed. The claimant failed to provide evidence that her post-accident life was significantly different than her pre-accident life.

C.G. v. The Guarantee Company of North America (17-007300)

The claimant had a number of pre-accident injuries and impairments. She suffered an exacerbation of her conditions in the accident. She sought entitlement to NEBs, removal from the MIG, and two assessment costs. The insurer argued that the claimant’s impairments were not caused by the accident. Adjudicator Johal accepted that the accident did cause an exacerbation of pre-existing injuries that would otherwise have not occurred. She also concluded that the claimant suffered chronic pain as a result of the accident given that her pain persisted for more than six months, and her injuries therefore did not fall within the MIG; this conclusion was made without a specific diagnosis of chronic pain. The claimed psychological assessment was awarded, but the denied in-home assessment was not as the medical evidence suggested that the claimant remained independent with personal care. The claim for NEBs was also dismissed. The claimant failed to provide evidence that her post-accident life was significantly different than her pre-accident life.

F.K. v. TD Home and Auto Insurance Company (18-008114)

The claimant sought entitlement to NEBs, ACBs, and psychological treatment. Adjudicator Gosio rejected the claims for NEBs and ACBs, and found that the psychological treatment plan was disputed more than two years after the denial. The claimant failed to lead sufficient evidence that the accident was the cause of her impairments, as she had extensive pre-accident injuries and impairments. Adjudicator Gosio also rejected the claimant’s argument that the “material contribution” test should apply. Regarding the claim for ACBs, the adjudicator again noted that the claimant was receiving personal care in relation to an earlier accident and that she failed to prove that further care was required as a result of the subject accident. The disputed psychological treatment was denied more than two years prior to the LAT application.

B.H.X. v. Aviva General Insurance (19-002556)

The claimant sought entitlement to NEBs, a psychological assessment, and the cost of a plastic surgery consult. Adjudicator Norris dismissed the claims for NEBs and plastic surgery consult, but awarded the psychological assessment. The claimant failed to provide evidence supporting NEB entitlement, and his self-reporting suggested he was in fact more active after the accident, and he maintained independence with personal care, meal preparation, and household chores. The plastic surgery consult was incurred prior to the submission of the treatment plan, so it was not payable. The psychological assessment was found reasonable and necessary, but not payable because it was not incurred.

R.L. (Litigation Guardian) v. Allstate Insurance Company of Canada (18-005036)

A preliminary issue was heard as to whether the claimant’s NEBs appeal was barred by the limitation period. Adjudicator Johal concluded that the limitation period barred the appeal and that the case did not warrant an extension under section 7 of the LAT Act. The claimant argued that she did not have the requisite mental capacity during the limitation period and that it should be stayed during the incapacity. The adjudicator held that the Tribunal did not have the power to suspend or stay the limitation period in the SABS, but considered the argument in relation to section 7 of the LAT Act. Adjudicator Johal did not extend the limitation period, reasoning that the claimant failed to provide evidence that a mental incapacity existed back to the time frame of the NEB denial. The evidence did not show a bona fide intention to appeal, the delay in appealing the denial was 5.5 years, and there was potential prejudice to the insurer.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.