Applicant Fails to Show Post Accident Life Significantly Altered Due to Accident - GV v Northbridge General Insurance LAT 16-001698

December 29, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

GV v Northbridge General Insurance LAT 16-001698 2017 CanLII 77389 (ON LAT)

Decision Date: November 9, 2017
Heard Before: Eleanor White

NEBs and MEDICAL BENEFITS: applicant fails to provide evidence that post accident life has left him completely unable to live his pre-accident life; medical benefits denied

GV was involved in car accident on August 18, 2013, and sought a Non-Earner Benefit and medical benefits for treatment of his injuries from Northbridge. He was denied entitlement to medical benefits beyond MIG. Northbridge subsequently determined that GV’s injuries were not minor and he was not subject to the MIG treatment cap of $3,500.00. It then approved GV’s medical treatment claim.

GV was also denied the NEB after attending IEs.  GV did not agree with Northbridge’s position and applied to the LAT for arbitration.

Issues:

1. Is GV entitled to a NEB in the weekly amount of $185.00 from February 17, 2014 to the date of hearing and ongoing?
2. Is GV entitled to interest for any overdue payment of benefits?
3. Is GV entitled to an award because Northbridge unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?
4. Is GV entitled to all outstanding amounts from previously incurred treatment plans?
5. Is GV entitled to legal costs?
6. Is Northbridge entitled to legal costs?

RESULT

1. GV is not entitled to receive a non-earner benefit of $185.00 per week for any period after the date of February 17, 2014.   GV did not meet his onus of showing he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
2. GV is also not entitled to the payment of interest on that benefit.  I do find however that GV is eligible for payment of interest on the previously approved treatment plan invoiced in the amount of $2,464.28 on June 7, 2014.
3. GV is entitled to an award for the belated decision of Northbridge to change their position on the threshold of GV’s injuries and subsequent payment of the one remaining claim for a denied plan for treatment.  The tardy decision to allow GV’s injuries to not be constrained by the Minor Injury Guideline disallowed for an extended period, this retired injured person access to treatment eventually deemed acceptable.  Northbridge will pay GV an amount of $1,232.14, 50% of the amount of the treatment plan submitted June 7, 2014.  
4. No Order is issued in respect of all previously incurred medical benefits as they were withdrawn and are no longer before the Tribunal.
5. Costs are not awarded to either party.  

Non-Earner Benefit (NEB)

The onus is on GV to prove his entitlement to NEBs.  The test is described in the Schedule:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

The insurer is not required to pay a NEB for the first 26 weeks after the onset of the complete inability to carry on a normal life.

The Adjudicator noted there must be a comparison of GV’s activities and life circumstances before the accident to those post-accident, and they must be assessed over a reasonable period prior to the accident; the duration of which will depend upon the facts of the case.

G. V. was injured as a passenger in a charter tour bus accident.  He was thrown forward out of his seat (the bus was not equipped with seatbelts), hitting his chest and ribcage on the seat ahead and then fell into the central passageway onto his knees. He was 79 years of age at the time of the accident.  He had pre-existing back, knee and foot conditions.  GV had prior cardiac bypass surgery. GV claims he still has pain from the injuries arising from the accident.

The only information regarding GV’s life before and after the accident is in his submissions.  No statement, or an affidavit to support the submissions was provided.  The retired applicant described his life pre- and post- accident in this manner:

1. Pre-accident
   1. Attended temple several times per week
   2. Active member of community and at temple, including volunteering
   3. Daily groceries
   4. Shared house chores with his wife and daughter, liked to cook, vacuum
   5. Independent in his personal care tasks

The record is unclear if prior to the accident he was already living alone in a senior’s apartment.  He had been living with his wife in the apartment but at some time around the time of the accident, his wife began living with him on the weekend but with one of their daughters throughout the week.  The timing of this change in living arrangement is not well described in submissions, but is mentioned in the IE reports.  This is pertinent as it affects GV’s mobility, as neither GV nor his wife have a driver’s license and depend upon either their daughter or public transport for major shopping or rides to the temple.

1. Post-accident
   1. Could not attend temple as much
   2. Stopped volunteering work at temple and in community
   3. Gave up most grocery shopping and cooking, did not vacuum
   4. Spent more time going to see doctors and getting therapy
   5. Required some assistance from his wife and daughter with his daily routine.

The Adjudicator reviewed the medical evidence and the law. The adjudicator noted that GV states he was improperly notified of IEs and did not attend them, but provided no details as to the nature of the problem with the notification or the reason he was unable to attend.

The Adjudicator reviewed the IE reports and found them persuasive. On that basis he found GV’s impairments do not meet the NEB test.

GV submitted no evidence from friends, family or the temple, supporting the reported difference in his routine.  There is no medical evidence that supports impairments directly linked to the accident that completely and continuously renders him unable to engage to a reasonable degree in the elements of a normal life.  The evidence presented certainly supports taking him out of the limitations of the MIG, but does not entitle him to the non-earner benefit.

The Adjudicator accepts GV’s complaints of pain and a somewhat altered ability to carry on a normal life are primarily due to the exacerbation of pre-existing conditions and that may be caused by the accident, but did not find GV meets the test for NEB as there is no evidence to support the position that he is completely unable to carry on a normal life, compared to his pre-accident state.          

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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.