Applicant has ongoing limitations but still falls in the MIG

March 31, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

A. W. v Cooperators: Non-Earner Benefits; NEBs;

Date of Decision: February 7, 2017
Heard Before: Adjudicator Cynthia Pay

A.W.  was a pedestrian hit by a car. The car accident occurred February 21, 2015. A.W. sought benefits pursuant to the SABS. He applied for non-earner benefits (NEBs) and funding for treatment, including physiotherapy.  These benefits were denied by Allstate, who took the position that A.W.  did not meet the test for non-earner benefits.  Treatment was denied by Allstate on the basis that A.W. ’s injuries were minor and that he had exhausted the $3500 available for treatment for minor injuries.  A.W.  applied to the LAT regarding his entitlement to these benefits. 

Issues:

1. Is A.W.  entitled to NEBs at the rate of $185.00 per week ongoing from 26 weeks post-accident?
2. Are A.W. ’s injuries predominantly minor as defined in s. 3(1) of the Schedule?
3. If so, is A.W.  entitled to:
   1. $399.00 for in a treatment plan (OCF-18) dated September 22, 2015?
   2. $1,295.98 for a treatment plan (OCF-18) dated May 27, 2015 less amounts approved/paid by the Insurance Company?
   3. $598.98 for a treatment plan dated January 14, 2016?
   4. $299.25 for an invoice dated January 25, 2016?
   5. $200 for completion of a disability certificate in an invoice dated April 4, 2016?
4. Is A.W.  entitled to interest for the overdue payment of benefits?

Results:

1. The Arbitrator denies all the claims.  A.W.  has not proved that he is eligible for non-earner benefits or that his injuries are not predominantly minor injuries.

The Arbitrator reviewed the law in the case and noted that the test for NEBs is clearly laid out in the SABs. He also noted that in previous cases it has been held that the claimant must establish that he is “continuously prevented from engaging in substantially all of his pre-accident activities”

It is agreed that A.W. was not employed at the time of the accident and therefore does not qualify for IRBs. He applied for NEBs by way of an OCF-3 disability certificate but the health care provider checked “no” in response to the question of whether A.W.  met the test for Non-Earner Benefits.  This OCF-3 was submitted within the 26-week waiting period for non-earner benefits. A.W.  submitted a further OCF-3 Disability Certificate dated April 4, 2016 that was supportive of his eligibility for non-earner benefits, as the box regarding the non-earner test was checked off as “yes”.  No further detail was provided on the form in relation to non-earner benefits except a list of injuries including whiplash associated disorder; sprain and strain of thoracic and lumbar spine, knee and ankle; and headache.

The benefit was denied by Allstate in response to the original application, and this denial was confirmed after an Insurance Examination and Paper Review by an Orthopaedic Surgeon dated April 26, 2016. 

A.W. claims that he has become limited in his activities around the house, year and repairing the car due his injuries. He also claims that he can no longer take long car rides or walks, and he has pain when he is active. Under cross-examination, he testified that he can do light cooking tasks, light grocery shopping and drive locally.

Allstate submitted a surveillance report dated May 25, 2016, which showed A.W.  driving a car and attending at a phone store and flea market booth on two different days.  A.W.  remained in the store for 8.5 hours and at the flea market for about 6 hours on the days in question.  A.W.  was observed to enter and exit his car, walk and climb stairs, carry light objects such as a bag of takeout food without “any obvious signs of physical restriction”.  A.W.  did not dispute the activities reported, and confirmed in his testimony that he helps out at a phone store owned by his friend. A.W.  testified that he can go into the shop and flea market late or leave early as needed if he is in pain or sick, and that he is paid on a casual basis in cash.

Based on the evidence the Arbitrator did not find that A.W.  has proven that he meets the test for non-earner benefits.  Although he does appear to suffer from some physical limitations, he has not met the burden of proving his eligibility for these benefits on the balance of probabilities. Medical reports and an IE do not support a claim of limited activities, nor that A.W. was prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

The Arbitrator noted that the SABs is clear, A.W.  bears the onus of proving that he has accident-related impairments that are not minor. Based on the evidence before the Arbitrator did not find that A.W.  has proved on the balance of probabilities that his injuries are not minor.

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.