Applicant fails to show eligibility for NEB and Physiotherapy 18-002654 TT v. Security National Insurance Co., 2019 CanLII 18333 (ON LAT)

May 08, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant fails to show eligibility for NEB and Physiotherapy 18-002654 TT v. Security National Insurance Co., 2019 CanLII 18333 (ON LAT)

Date of Decision: January 21, 2019
Heard Before: Adjudicator Christopher A. Ferguson

NON EARNER BENEFITS (NEBs) -  Schedule clearly defines criteria for NEB eligibility; SABs outline process for eligibility for treatment; applicant fails to meet burden of proof

TT was injured in a car accident on October 11, 2014. He applied for accident benefits pursuant to the SABs and then appealed to the LAT when the disputed benefits were denied Security.

Issues:

1. Is TT entitled to a non-earner benefit (NEB) in the amount of $185.00 per week from August 21, 2015 to date and ongoing?
2. Is TT entitled to a medical benefit in the amount of $3,129.48 for physiotherapy services recommended in a treatment plan?
3. Is TT entitled to interest on any overdue payments from Security?
4. Is Security liable to pay an award under the Regulation because it unreasonably withheld or delayed payments to the TT?

FINDINGS

1. TT has not proven her entitlement to the benefits she seeks: her application is denied, and the issue of interest is therefore moot.
2. Security is not liable to pay an award under the Regulation.
3. Security made a request for costs, which is denied.

REASONS

Section 12 of the Schedule provides that an insurer must pay a NEB to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident. The Schedule clearly sets out the criteria that a person suffers “a complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that “continuously prevents” him or her from “engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.

TT’s pre-accident activities included housekeeping, grocery shopping (including walking to and from shops), cooking family dinners, socializing with friends and attending church services. The applicant is retired.

TT provided evidence of her inability to engage in substantially all of her pre-accident activities. These included A Disability Certificate (“OCF-3”) by her personal physician, a Disability Certificate (“OCF-3”) by her chiropractor, and TT’s sworn affidavit. TT describes herself as a highly functional independent caregiver and provider prior to the accident.

Security submitted IE reports from a range of medical practitioners, all of them dated July 24, 2015 and all of them rebutting the applicant’s position with respect to her claimed disability.    Security then showed that TT, in her self-reporting to various medical practitioners, has contradicted her own claims of disability.

On the basis of the evidence the Adjudicator found that TT has not met the onus on her to prove that she is entitled to NEBs.

Physiotherapy

The Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

TT’s claim for physiotherapy is not accompanied by medical evidence beyond her OCF-18. She did not lead any evidence to support her claim.

On this basis the Adjudicator found that that TT has failed to meet the onus on her to prove entitlement to the medical benefit she claims.

About Deutschmann Law

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.