Applicant Fails to Show Complete Inability to Carry on Normal Life - OD v Unifund - 16-004399 v Unifund

October 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

OD v Unifund - 16-004399 v Unifund Assurance Company, 2017 CanLII 59505 (ON LAT)

Date of Decision: August 4, 2017
Heard Before: Adjudicator Nicole Treksler

NEBs: applicant fails to make case that she has complete inability to carry on a normal life

OD was 72 and retired when she was injured in car accident and made a claim for NEBs.  She relies on the Disability Certificate dated April 18, 2016 by a physiotherapist, and on a psychological report dated August 9, 2016, to support her claim for NEBs.

Unifund denied benefits based on IE reports dated August 9, 2016, a kinesiologist, a physiatrist, and a psychologist, which all concluded that OD does not meet the test for NEBs.

The onus is on OD to prove that she has a complete inability to carry on a normal life as a result of the accident.

The Adjudicator found that OD did not meet her evidentiary burden as she did not provide any persuasive evidence that she meets the test.

Issues:

1. Is OD entitled to receive a non-earner benefit in the amount of $185.00 per week for the period June 4, 2016 to date and ongoing?

Result:

1. OD is not entitled to NEBs.

Section 12(7)(a) of the Schedule states that Unifund 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 first documented onset of OD’s eligibility for NEBs is a Disability Certificate dated April 18, 2016.  In the absence of any other evidence from OD, the earliest date of eligibility for OD is October 16, 2016.

The test for entitlement to NEB is outlined in subsection 3(7) of the Schedule and states “a person suffers from a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

OD has not produced any evidence, other than a psychological report, to show her life before and after the accident.  The report provided some information about OD’s activities, however, it gave a limited picture of OD’s activities pre-and post-accident. As part of the Heath test, OD is required to provide evidence on what activities were most important to her.  OD did not do this.  Normally, applicants would provide evidence such as sworn affidavits outlining their lives before and after the accident, physician reports and clinical notes and records from various medical practitioners to demonstrate their entitlement to the benefits. Without this evidence, there is no way to identify activities that were most important to her.

OD submits that she has been diagnosed with adjustment disorder, specific phobia, situational (driving related); and a chronic pain disorder, which are a direct result of the accident. The report concluded the the injury is to be considered a serious impairment as she is substantially unable to carry on the activities of her normal life, and, given OD’s age, it is unlikely that her condition will improve.

The Adjudicator noted that OD’s life has been impacted by pain and some psychological distress, but not to the extent that would prevent her from carrying on a normal life. She also concluded that the IE assessors’ observations and conclusions along with OD’s self-report of her activities before and after the accident demonstrate that OD is able to continue her pre- accident activities.

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.