Category: Non-Earner Benefits

M.K. v. Aviva General Insurance (18-009319)

The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to NEBs. Adjudicator Grant dismissed the reconsideration. He held that new evidence could not be admitted on reconsideration, since there was no explanation why the evidence was not available for the hearing. He also held that the exclusion of the family physician was not a denial of procedural fairness or natural justice because the claimant had never identified the family physician as a witness prior to the hearing.

D.Y. v. Aviva General Insurance Company (18-011171)

The claimant sought entitlement to NEBs, medical treatment, various assessments, and a special award. In addition, the claimant sought entitlement to the balance of proposed catastrophic impairment assessments, which had been proposed in the amount of $26,400.00 and approved up to $12,400.00. The claimant was found entitled to NEBs, chiropractic and physiotherapy treatment, concussion management, and various s. 25 assessments up to $2,000.00 limit. Adjudicator Conway approved a second portion of a neuropsychological assessment, but denied the claim for additional CAT assessments because they were duplicative or for review of medical records (which is included in the $2,000 limit). The claimant was found entitled to interest if the cost of treatment had been incurred. Interest was found payable from the date payment was made by the applicant until the date of payment by the insurer. A special award of 33 percent was made due to the insurer not approving medical benefits when it had sufficient evidence that the claimant suffered from chronic pain and psychological injuries.

M.N.T. v. Certas Direct Insurance Company (19-000031)

The claimant sought non-earner benefits. An Tribunal Order of June 24, 2019, determined that the issues in dispute were NEBs and interest on overdue payments. In the claimant’s submissions, she included 2 additional issues: (1) status under the MIG and (2) a medical rehabilitation benefit. The claimant provided physiotherapy records, which included only one page of an initial assessment dated in November 2016, a treatment session note as well as a treatment plan and an OCF-3 all dated in November 2016, which did not note any impairments resulting from the accident Adjudicator Chakravarti concluded that the claimant had not shown evidence that she sustained an impairment as a result of the accident, let alone to prove she suffered a complete inability to carry on a normal life. The applicant was found not entitled to NEBs.

A.P. v. Aviva Insurance Canada(18-007997)

The claimant sought entitlement to NEBs, medical benefits proposed in three treatment plans, and the cost of examination expense for an orthopaedic assessment. Adjudicator Grieves concluded that the claimant was not entitled to NEBs as the claimant failed to prove that he suffered a complete inability to carry on a normal life. Adjudicator Grieves found that all disputed medical benefits proposed in the three treatment plans were reasonable and necessary, and disagreed with s. 44 IE conclusions that the claimant had reached maximal recovery. Lastly, Adjudicator Grieves also found the cost of examination expense for an orthopaedic assessment was reasonable as it was related to the assessment of accident-related injuries.

A.V. v. Certas Home and Auto Insurance Company (18-007875)

The claimant sought entitlement for weekly non-earner benefits and entitlement to one treatment plan for a psychological assessment. Adjudicator Lake found that the claimant was not entitled to the benefits in dispute. Adjudicator Lake noted that the claimant failed to prove on a balance of probabilities that she suffered from a psychological impairment or from chronic pain syndrome which would take her outside of the MIG. Adjudicator Lake found that the treatment plan was not reasonable and necessary as a result of the accident. In determining whether the claimant was entitled to ongoing non-earner benefits, Adjudicator Lake compared her pre- and post-accident activities of daily living. Adjudicator Lake concluded that the claimant did not identify what period of time she engaged in her pre-accident activities or what pre-accident activities were important to her. In cross-examination, the claimant also confirmed that at least seven months post-accident she was able to grocery shop, cook and sweep, and she was able to drive for five months post-accident. Adjudicator Lake concluded that the claimant had not met her onus of establishing that she suffered a complete inability to carry on a normal life.

A.V. v. Certas Direct Insurance Company (18-007875)

The claimant sought entitlement to NEBs, a determination that her impairments were outside of the MIG, and the cost of psychological assessment. Adjudicator Lake found that the claimant failed to prove on a balance of probabilities that she suffered from psychological issues or chronic pain arising from the accident and, as a result, her injuries did not fall outside of the MIG. Adjudicator Lake also denied entitlement to NEBs, as the claimant failed to prove on a balance of probabilities that she suffered a complete inability to carry on a normal life as a result of the accident. Lastly, Adjudicator Lake also found that the claimant was not entitled to the proposed psychological assessment, as she failed to prove that it was reasonable and necessary on a balance of probabilities. Of note, Adjudicator Lake indicated that the existence of psychological symptoms alone did not warrant a removal from the MIG, as precedent cases have noted that “psychosocial symptoms” can be considered a minor injury treatable within the MIG.

A.B. v. Aviva General Insurance Company(18-010200)

The claimant sought entitlement to non-earner benefits. Adjudicator Farlam 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 thus not entitled to non-earner benefits. The adjudicator noted that the weight of the evidence supported that the claimant’s physical and psychological injuries were not debilitating and had not prevented him from resuming pre-accident activities such as some employment and physical activity. He further noted that the clinical notes and records and OCF-3s put forth by the claimant were not sufficient to outweigh the insurer’s multi-disciplinary IE reports, all of which found that the claimant did not suffer a complete inability to carry on a normal life.

W.F. v. Aviva Insurance Company (18-007724)

The insurer filed a request for reconsideration following a decision in which the Tribunal found that the insurer’s section 33 request was reasonably necessary and upheld its suspension of NEBs. The insurer claimed that the suspension should have lasted for a longer period of time. The Tribunal found that the insurer’s initial notice of suspension did not advise the claimant of his rights under section 33(8) of the SABS, which indicates what would happen if he eventually complied with the section 33 request, and thus the insurer was only entitled to suspend NEBs effective on the date of the later notice of suspension which did outline the claimant’s right under section 33. Vice-Chair Lester granted the reconsideration request in part, finding that the Tribunal made an error in law by obligating the insurer to include information in the section 33 notice that is not detailed in the SABS. As the claimant did not comply with the section 33 request in its entirety, the claimant’s NEBs were suspended as of the date of the initial notice of suspension.

E.M. v. The Guarantee Company of North America (18-000674)

The claimant filed a request for reconsideration following a decision in which the Tribunal concluded that he was not entitled to NEBs or various medical benefits. The claimant argued that the Tribunal erred in law by not engaging the Heath analysis and not considering evidence tendered at the hearing. Adjudicator Punyarthi dismissed the reconsideration request, noting that the Tribunal correctly cited the test for NEBs and appropriately weighed the evidence tendered at the hearing. It was beyond the scope of a reconsideration to engage in a re-weighing of the evidence.

E.M. v. The Guarantee Company of North America (18-000674)

The claimant filed a request for reconsideration following a decision in which the Tribunal concluded that he was not entitled to NEBs or various medical benefits. The claimant argued that the Tribunal erred in law by not engaging the Heath analysis and not considering evidence tendered at the hearing. Adjudicator Punyarthi dismissed the reconsideration request, noting that the Tribunal correctly cited the test for NEBs and appropriately weighed the evidence tendered at the hearing. It was beyond the scope of a reconsideration to engage in a re-weighing of the evidence.