Volume. 7 Issue. 28 – July 26, 2023
This week, in ‘Ten Years NEB Comes to an End’, the Tribunal considers whether the respondent’s termination of NEB after ten years was appropriate.
Then, in ‘Seeking Repayment of IE Expenses Contrary to Public Policy’, the Tribunal perhaps delivers a final verdict on insurer’s seeking repayment of IE expenses in matters involving wilful misrepresentation.
LAT Update – What Difference Did A Year Make?
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
NEB Terminated After Ten Years
Ten Years NEB Comes to an End – The Applicant Rimkey, in 21-006848 v Wawanesa, was rendered CAT as a result of injuries sustained in a December 2011 MVA. He was in receipt of Non Earner Benefits (NEB) until April 12, 2021. At that time, Wawanesa terminated NEB, with an Insurer’s Examination (IE) concluding that Rimkey no longer had a complete inability to carry on a normal life, as he has “returned to many, if not most of his activities of daily living.”
The Tribunal noted that it was difficult to compare Rimkey’s pre MVA life with his present life. He was 18 years old on the date of loss, and was now a 29 year old married individual. Given the limited history to consider, “it is important to consider not only the pre-accident activities but also the trajectory of the individual’s life. This is particularly relevant when considering an applicant’s work history (which is minimal, if at all) and his present employability.” It was further noted that Rimkey purchased his own home in 2019, his wife moved in with him in 2021, and they were now expecting their first child.
With respect to career trajectory, prior to the MVA Rimkey had been accepted into the Police Foundations programs at both Georgian College in Orillia and at Canadore College in North Bay. Presently however, he felt that his injuries rendered him incapable of successfully completing the programs. He had also taken a business course at Georgian, however, was able to only do one course at a time due to pain and anxiety. The testimony of Rimkey’s aunt spoke to employability, noting that he had looked into house-flipping as a vocation and has an amazing flair for design and decorating.
The Tribunal considered the fact that the goal of commencing studies in Police Foundations was terminated due to MVA related injuries. It was noted first off that there is no way to be certain that the path to becoming a police officer would have been successful, or that that path would not have changed enroute. In addition, there was no medical evidence before the Tribunal stating that this goal is currently unattainable. Finally, “even if becoming a police officer is unattainable, there is testimonial evidence that the applicant is probably capable of working in other occupations, such as house-flipping or designing.”
While there was no doubt that Rimkey “continues to suffer somewhat in his ability to live a normal life since the accident…however, he has made significant progress in his recovery.” Since 2015 “he has lived independently, has purchased a home, married his wife, adopted a rescue dog, is in the process of building a new home, and is now expecting his first child. Referencing the medical evidence, it was noted that Rimkey had not produced any medical expert report concluding that he has a complete inability to carry on a normal life. In contrast, there were two expert reports commissioned by Wawanesa concluding that he does not. The Tribunal was not able to “conclude that Rimkey was substantially incapable of carrying out all of his pre-accident activities and therefore suffers a complete inability to carry on a normal life.”
Contravening Public Policy
Seeking Repayment of IE Expenses Contrary to Public Policy – In 21-003837 v TD Insurance, TD sought repayment of $3,499 paid for medical benefits, in addition to $8,449 in IE expenses. This was based upon an earlier finding that the applicant Dawkins committed an act of wilful misrepresentation, given that he was found not to have been involved in an accident as alleged. The Tribunal agreed with TD that given the clear and wilful misrepresentation, TD was entitled to a repayment of the $3,499 paid out in medical benefits. The Tribunal found that the notice relied upon by TD was “imperfect but sufficient”.
In determining sufficiency, the Tribunal found it necessary to address TD’s seeking of expenses to which it was not entitled, namely the IE expenses, given that they are in fact expenses as opposed to benefits. However, said request “does not detract from the overall sufficiency of the notice.” There was “no evidence demonstrating that the TD’s request for these expenses was made deliberately to mislead the Claimant.” The Tribunal “acknowledge(d) the potential public policy issue in permitting the TD to rely on a repayment notice that requests an amount for expenses not covered under section 52 of the Schedule. This practice should be discouraged, as these types of requests contravene the consumer protection mandate of the Schedule.”
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