Applicant Fails to Support Assertions With Evidence - Applicant v Certas LAT 16-004634

January 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Certas LAT 16-004634

Decision Date: December 19, 2017
Heard Before: Adjudicator D. Gregory Flude

NEBs: applicant fails to provide evidence that supports assertions; applicant does not provide information in format that LAT requests; applicant fails to demonstrate how life post accident is different than life pre accident

The applicant was injured in car accident on October 20, 2014. She applied to Certas for a NEB pursuant SABs and was denied. She disputes that denial and has applied to the LATto resolve the dispute.

The complicating factor in the applicant’s claim is the fact that she was injured in a previous motor vehicle accident on September 5, 2013. Certas argues that if the applicant qualifies for a non-earner benefit it is because of injuries sustained in the first accident not the second. The applicant argues that the second accident worsened the injuries she sustained in the first accident just at a time when she was recovering and, as a result, she is entitled to a non-earner benefit because of the impact the second accident has had on her ability to lead a normal life.

For the applicant to succeed she must establish, on a balance of probabilities, that she suffers from a complete inability to lead a normal life as a result of an impairment sustained in the second accident on October 20, 2014. The Adjudicator had no direct evidence setting out the details of the applicant’s life before and after the accident, and was left to glean the nature of her pre- and post-accident life from statements she made to medical examiners and statements made during an examination under oath conducted by Certas. Having considered that evidence the Adjudicator found the applicant has failed to establish that she is completely unable to live a normal life.

Issues

1. Is the applicant entitle to a non-earner benefit?

Result

1. The applicant is not entitled to a non-earner benefit.

Before proceeding with the analysis, the Adjudicator addressed deficiencies in the applicant’s submissions. The pages of the briefs are not numbered and the applicant failed to direct the Adjudicator to any specific page in support of her submissions. Manu of the CNRs were handwritten and illegible. Notwithstanding the lack of guidance, the Adjudicator did review the records that were submitted.

The applicant’s submissions reference facts for which there is no evidence in the record. Certas submits that due to the deficiencies in the applicant’s submissions, factual assertions, not supported by evidence, ought not to be considered.  The Adjudicator concurred and did not taken any submissions into account unless they are supported by the evidence.

The onus was on the applicant to a non-earner benefit if she establishes that she suffers from “a complete inability to live a normal life.”

There are three documentary sources that give some insight into the applicant’s life before and after the October 20, 2014 accident. The applicant was examined by two doctors on behalf of Certas. She was also examined under oath by Certas about this accident. Only one of those sources suggests that she had major lifestyle changes as a result of the accident and she disavowed those statements unequivocally in the examination under oath.

Reviewing the totality of the evidence, the Adjudicator was satisfied that the applicant’s lifestyle changes are attributable to the accident on September 5, 2013. There is no evidence that she has suffered a deterioration in lifestyle as a result of the accident on October 20, 2014 sufficient to satisfy the test that she now has a compete inability to live a normal life.

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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.