Applicant fails to make case for NEB eligibility - RS v Aviva – LAT 16-003141

October 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

RS v Aviva – LAT 16-003141

Date of Decision: July 17, 2017
Heard Before:  ADJUDICATOR Chris Sewrattan

NEBs: applicant fails to prove eligibility for NEBs

RS was injured in a car accident on December 13, 2014. He applied for and was paid a non-earner benefit under the SABs. RS appealed Aviva’s stoppage of his non-earner benefit effective May 27, 2016 to the LAT.

Issues:

1. Is RS entitled to receive a non-earner benefit in the amount of $185.00 per week from May 28, 2016 to December 13, 2016, and $320.00 per week from December 14, 2016 to date and ongoing?
2. Is RS entitled to interest on outstanding payments?

Result:

1. RS is not entitled to a non-earner benefit in the amount of $185.00 per week from May 28, 2016 to December 13, 2016, or $320.00 per week from December 14, 2016 to date.

There are three procedural issues.

1. First, RS objects to Aviva’s submission of surveillance evidence. RS submits that the surveillance evidence is in non-compliance with the Tribunal’s Rules relating to service and the Order setting out deadlines for the hearing. The surveillance footage shows the level movement that RS has described in his affidavit. It does not add to my analysis.
2. Second, RS objects to Aviva’s submission of expert reports. RS submits that the reports are also in non-compliance with the Tribunal’s Rules and the Order setting out deadlines for the hearing. The Arbitrator was unable to see any prejudice that flows from Aviva’s non-compliance. RS expressed none in his submissions. To disallow Aviva’s expert reports would be to focus on technical non-compliance at the expense of other practical considerations, namely having relevant evidence at this hearing. Aviva’s expert reports are admitted into evidence.
3. Third, the Arbitrator expressed his disappointment in counsel for both parties for failing to comply with the Tribunal’s Order regarding page limits. In an Order dated January 9, 2017, the Tribunal ordered that initial and response submissions in this hearing not exceed 15 double-spaced pages. RS submitted 9 single-spaced pages; the respondent 14 single-spaced pages. In the future the Arbitrator expects that counsel, who are both able and experienced, will comply with the Tribunal’s Order.

In order to qualify for a non-earner benefit, RS must prove that as a result of the accident he sustained an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. In reaching the decision the Arbitrator considered the evidence in three interrelated parts:

•         Life before the accident;  The impairment sustained as a result of the accident; and Life after the accident.

The Arbitrator reviewed the evidence and noted RS was 28-years old at the time of the accident. RS has three children that do not live with him. RS lived with his mother. He was attending school while in his first year of a Business Administration/Marketing diploma program at Centennial College. In his Reply submissions, RS described the most important aspects of his life prior to the accident to be his children, his favourite sports such as basketball and soccer, and pursuing his studies.

Prior to the accident RS’s activities of daily living included personal care, housekeeping and home maintenance, caring for his children, attending school, playing sports and living a full social life.

RS sustained whiplash and WAD 2, Cervicothoracic shoulder myofascial dysfunction; Lumbar musculoligamentous dysfunction; and right knee patellofemoral dysfunction, adjustment disorder with mixed anxiety and depressed mood; and somatic symptom disorder with predominant pain, moderate.

The impairments sustained as a result of the accident are important to the extent that they shed light on RS’s ability to function after the accident. In considering the evidence related to RS’s life after the accident, the Arbitrator must determine whether the impairments sustained as a result of the accident continuously prevent RS from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The Arbitrator found that RS has not met his onus in establishing his impairment meets this test.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.