The claimant filed an Application disputing entitlement to NEBs, interest and sought costs under Rule 19. The claimant relied on limited medical evidence, including some diagnostic reports, an OT functional assessment, and doctors’ records. The claimant argued that his accident-related injuries resulted in a complete inability to carry on a normal life. The insurer argued that the claimant’s OCF-3 did not support entitlement to a NEB, nor did he submit any further OCF-3s indicating entitlement. Furthermore, the insurer noted that the medical evidence submitted did not indicate that the claimant met the NEB test. The claimant noted that the OCF-3, completed by a physiotherapist, was not in itself a complete medical assessment, and further argued that Aviva should have gathered evidence on its own addressing the claimant’s entitlement. While Adjudicator Hines did find the claimant’s argument regarding the OCF-3 not in itself being a medical assessment relevant, she did not find the argument that Aviva should have gathered more evidence to be persausive, noting that the onus was on the claimant to present evidence proving his case, not on the insurer. Adjudicator Hines agreed with Aviva that the failure of the claimant to submit a supportive OCF-3 would lead to his claim failing. She further noted that, if her interpretation of this, specifically s. 36(3), was wrong, the claimant’s Application would still fail as the claimant’s submissions barely discussed his pre-accident functioning compared to the post-accident reports, which was a crucial factor required to determine entitlement as per the landmark case of Heath v. Economical. Furthermore, aside from the OT report submitted by the claimant, none of the other reports of medical records showed that he was continously prevented from carrying out his pre-accident activities. Adjudicator Hinest noted that the bulk of the evidence submitted by the claimant only summarized other medical records and listed impairments, but did not address how these impairments resulted in a complete inability to carry on a normal life. There were also vague references to overal functional impairments, but these were not described or expanded upon. As the claimant did not submit a supportive OCF-3, and considering his evidence had failed to address his post-accident functioning in comparison to his pre-accident functioning, Adjudicator Hines was unable to see a clear picture of the claimant’s pre-accident and post-accident functioning, which was the first step in determining entitlement to a NEB. As such, the claimant’s Application was dismissed.
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