Canadian Underwriter

You must show more than pain to claim a non-earner benefit

February 23, 2022   by David Gambrill

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It’s a long-held proposition that auto insurance is supposed to restore an injured driver to their pre-accident state of health — but what if that state was one of chronic pain following 15 years of being injured in a prior car accident?

Ontario’s Licensing Appeals Tribunal (LAT) has confirmed that being in a state of pain is not enough to qualify for a non-earner benefit (NEB). A person must be in such a state of pain that he or she “suffers a complete inability to carry on a normal life during the disputed period of entitlement.”

In Tyson v Aviva General Insurance, Frank Tyson was involved in an automobile accident on Aug. 1, 2017, and sought accident benefits from Aviva. The insurer denied his claim to an NEB, since Tyson did not suffer a complete inability to carry on a normal life. The NEB under dispute amounted to $185 per week covering the period from July 18, 2018, to Aug. 1, 2019.

Prior to the accident, Tyson suffered from varicose veins, having five surgeries to treat the condition, in addition to venous ulcers with pain in his legs, ankle pain and swelling, chest pain, back pains/sprains, Grade 1 lumbar spondylolysis, degenerative disc disease, facet osteoarthritis of the lumbar spine, bilateral knee osteoarthritis, and shoulder pain.

In addition, Tyson had been in an accident about 15 years prior in which he suffered injuries to his lower back and neck. He claimed the second accident exacerbated the injuries he’d sustained in the first accident.

After the 2017 accident, Tyson reported post-accident shoulder pain. But records showed a history of pre-accident shoulder pain complaints. For example, on Dec. 12, 2017, Tyson reported he had shoulder pain for six to seven months. On June 12, 2019, he reported shoulder pain ongoing for three years. And on Jan. 22, 2018, Tyson disclosed that he had been reporting shoulder pain for about a year to his treating physician, who found the shoulder condition to be degenerative.

Section 12 of Ontario’s Statutory Accident Benefits Schedule (SABS) provides that an insurer shall pay for an NEB to an insured person who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks.

Tyson said the pain prevented him from doing his pre-accident activities such as walking his dog, completing household tasks, cooking, home maintenance tasks like gardening, and helping with his father-in-law’s care. Aviva denied the NEB benefit on the basis of SABS reports that Tyson was independent with his activities of self-care, housekeeping and mobility. Medical reports also suggested that the pain he was feeling pre-existed before the second accident, and would not keep him from resuming his daily activities.

The LAT sided with Aviva.

“On balance, I agree with Aviva and find that its denial of F.T.’s NEB was appropriate, as he has not demonstrated that he continued to suffer a complete inability to carry on a normal life during the period in dispute,” the LAT writes in its decision.

“It is clear that F.T. continued to experience pain during this period, as all of the reports in evidence confirm that he continued to experience pain in his shoulders, neck, and knees. However, I agree with Aviva that where pain is the primary factor preventing an applicant from engaging in pre-accident activities, the Heath case requires the applicant to show that the pain practically prevents them from engaging in those activities.

“I find the evidence and F.T.’s self-reporting does not meet this stringent test.”


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