Category: Non-Earner Benefits

A.M. v. Wawanesa Mutual (18-008775)

The claimant sought a catastrophic impairment determination, as well as entitlement to NEBs, ACBs, various medical benefits, and the denied portion of catastrophic impairment assessments. The insurer argued that the claimant’s psychological injuries and epilepsy were not accident-related, but resulted from pre-existing conditions. Adjudicator Lake agreed with the insurer and dismissed all claims. She found that the claimant had suffered from various pre-accident impairments (epilepsy, migraines, major depressive episodes related to the death of the claimant’s daughter). Further, surveillance of the claimant showed that she was not credible in her self-reporting. Adjudicator Lake was also critical of the claimant’s experts assigning the maximum WPI when converting psychological impairment. With respect to psychological impairment caused by the accident, Adjudicator Lake found Class 1 and 2 impairments. The claims for NEBs and ACBs were similarly dismissed. The denied portions of the CAT assessments were not reasonable and necessary, and the claimed medical benefits were dismissed.

L.H. v. Aviva General Insurance (19-004132)

The claimant sought entitlement to ongoing NEBs and interest. The IE assessors concluded that the claimant did not suffer a complete inability to carry on a normal life. Adjudicator Kaur determined that there was limited evidence to refute the findings in these reports. Further, the claimant had not submitted any medical evidence to substantiate her pain-related complaints. The claimant’s pain did not prevent her from independent self-care or engagement in other activities. Adjudicator Kaur found that the claimant failed to explain how she would meet the non-earner benefit test. Also, the claimant did not provide enough evidence to demonstrate that the changes to her post-accident life have continuously prevented her from engaging in substantially all of her pre-accident activities.

S.V. v. Aviva Insurance Canada (18-011347)

The claimant sought entitlement to ongoing NEBs, and medical benefits for physical therapy. With regard to NEBs, the claimant argued that the insurer failed to respond to the application within the timelines set out in section 36. Adjudicator Flude found that the insurer did not comply with its obligations under section 36(4)(b) of the SABS to issue a denial letter until more than one year after the accident. He ordered the insurer to pay NEBs from 26 weeks after the application was submitted up to the date of the proper denial. NEBs were not awarded beyond that time frame as the claimant failed to prove he suffered a complete inability to live a normal life. The medical benefits claim was also dismissed.

L.C. v. Aviva Insurance Canada (19-005482)

The claimant applied to the LAT seeking entitlement to NEBs. Her submissions did not provide a detailed comparison of pre- and post-accident activities and functional abilities. Adjudicator Grant found that the claimant did not suffer a complete inability to carry on a normal life as a result of the accident, and was not entitled to NEBs.

M.M. v Aviva General Insurance Company (18-007868)

The claimant disputed her entitlement to NEBs and medical benefits, including chiropractic services and a chronic pain assessment. The respondent challenged the claimant’s credibility through the use of surveillance video that seemingly contradicted her self-reported, accident-related limitations. The claimant was observed driving, shopping at a busy mall, interacting with store clerks, and jaywalking, all with no obvious signs of distress. Adjudicator Mazerolle noted that surveillance cannot be viewed in isolation, and a decision-maker must compare and contrast the surveillance with information obtained from other sources. In doing so, Adjudicator Mazerolle felt that the surveillance evidence raised many serious questions about the claimant’s post-accident activity levels, which allowed him to conclude that she had not met the onus to demonstrate entitlement to non-earner benefits. While Adjudicator Mazerolle did not accept that the claimant suffered a complete inability to carry on with most of her pre-accident tasks, he did accept that the accident left her with a serious pain condition (as evidenced in the family doctor’s clinical notes and records), and found the disputed medical benefits to be reasonable and necessary.

H.M. v. The Dominion of Canada General Insurance Company (19-001752)

The claimant sought non-earner benefit, medical benefit, a special award and interest. Adjudicator Grant dismissed the claim. Adjudicator Grant held that the claimant did not suffer a complete inability to carry on a normal life as she did not meet the complete inability test based on pre-existing injuries and impairments, post-accident treatment and function of the claimant as well as the evidence of the s.44 assessors. Adjudicator Grant further held that the OCF-18 was not reasonable or necessary and the claimant was not entitled to an award or interest.

J.J.X. v. Aviva General Insurance (19-002558)

The claimant sought a determination that his injuries were outside of the MIG, and entitlement to medical benefits proposed in three physiotherapy treatment plans, a chiropractic treatment plan, and a psychological assessment. The claimant also sought entitlement to non-earner benefits. Adjudicator Grant found that the claimant’s injuries were predominantly minor and fell within the MIG. He found there were no records from any family physician to support the physical injury claims made by the claimant, and the medical evidence that was submitted confirmed that the claimant’s injuries were minor. As the MIG limit of $3,500 in medical and rehabilitation benefits had already been exhausted, it was unnecessary to determine whether the treatment plans in dispute were reasonable and necessary. Adjudicator Grant also found that the claimant had not met his onus of establishing that he suffered a complete inability to carry on a normal life and was therefore not entitled to non-earner benefits. He noted the medical evidence produced showed that the claimant returned to substantially all of his pre-accident activities, including attending the gym twice per week, cooking, and returning to school within a few days of the accident.

H.H. v. Aviva General Insurance (17-005287)

The claimant sought entitlement to non-earner benefits and an award. Adjudicator Gosio found that the claimant had not met her onus of establishing that she suffered a complete inability to carry on a normal life and was therefore not entitled to non-earner benefits or an award. He found that although the claimant demonstrated there were changes in her post-accident life with respect to the scope, frequency, and duration with which she engaged in some pre-accident activities, she could still perform many of her pre-accident activities, including child care needs, without significant restrictions. Adjudicator Grant noted the claimant’s testimony with respect to her post-accident activities was consistent with the orthopaedic and psychological IE reports, which indicated she was independent with self-care needs, able to attend to her child care needs despite pain, and perform laundry, light cleaning, and some cooking.

A.K. v Aviva Insurance Canada (18-002488)

The claimant disputed his entitlement to non-earner benefits, which the insurer had discontinued six months post-accident based on the medical evidence on file and the results of multi-disciplinary insurer examinations. In determining whether the claimant was entitled to ongoing non-earner benefits, Adjudicator Kowal compared his pre and post-accident activities of daily living. Adjudicator Kowal concluded that the claimant had recovered from his accident-related impairments to a degree that he was no longer prevented from engaging in substantially all his pre-accident activities, and as such, no longer met the test for a non-earner benefit. While acknowledging that the claimant had not returned to his pre-accident status, she noted that the medical evidence and hearing testimony supported that the claimant had made significant gains through treatment and was making excellent progress in returning to his regular activities.

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

The insurer brought this preliminary issue hearing arguing that the claimant was barred from disputing the denial of non-earner benefits on the grounds that the claimant did not do so within the two year limitation period. Adjudicator Grant found that the insurer issued a valid denial of non-earner benefits which triggered the limitation period. The denial was clear and unequivocal and provided the claimant with the required information to determine whether to dispute the denial. As the claimant did not appeal in time, she was barred from proceeding with her application.