My Insurer Denied My Request for Statutory Accident Benefits: What Now?

If you were injured in a car accident, regardless of which driver was at-fault, you could be entitled to accident benefits through your insurance provider. That is because all automobile insurance policies in the province are required to offer coverage in accordance with the Ontario Statutory Accident Benefits Schedule (SABS). The no-fault accident benefits to which injured motor vehicle collision survivors might be entitled could include coverage for medical expenses, income replacement payments if their injuries prevent them from working, and more.

Unfortunately, insurers often try to get out of their duty to pay benefits in a timely manner following a car accident. When benefits are denied, policyholders may seek assistance from the Automobile Accident Benefits Service (AABS) of the Licence Appeal Tribunal.

The Tribunal has the authority to review and reverse a decision to deny statutory benefits. In addition, the Tribunal can make a “special award” equal to 50% of the benefit the applicant was entitled to by law if the insurance company acted “unreasonably” in withholding or denying payment on a valid claim.

Applicant v. Aviva Insurance Canada: Insurance Denial Rejected by Licence Appeal Tribunal

Here is a recent illustration of how the Licence Appeal Tribunal functions in practice. The applicant in this case filed a claim for an income replacement benefit (IRB) from her auto insurance company following a car accident in November 2015. She was a passenger in the car at the time. The insurance company ultimately denied her claim.

Before the Tribunal, the applicant’s Ontario personal injury lawyer testified that she was employed at the time of the accident as a “general labourer” working 40 hours per week at a warehouse. Her position had substantial physical requirements, including standing and lifting boxes “non-stop” for upwards of nine hours per work-shift.

Following the accident, the applicant said she “could not return to her former job” due to extensive back pain, which limited her ability to stand continuously and carry boxes.

She also told the Tribunal that prior to the accident, she “was healthy and did not have any psychological or emotional problems.” But after hitting her head during the accident–sustaining a traumatic brain injury in the process–she started to experience serious headaches, which persist to the present. The applicant also described other symptoms of serious psychiatric trauma, including lack of sleep and recurring nightmares.

The Insurance Company Blames a Traumatic Childhood

The insurer did not dispute that the applicant was employed in the way she described. Rather, to defend its decision to deny income replacement benefits, the insurer argued that the applicant’s injuries did not arise from the car accident, but rather were the byproduct of “prior traumas in her life.”

The insurer pointed to the applicant’s childhood in Sierra Leone, where she “saw family members and neighbours get killed,” as well as to her parent’s divorce and the stress of dealing with a prior workplace accident involving her mother.

The Tribunal’s adjudicator rejected the insurance company’s attempt to deflect responsibility. The adjudicator noted that all of the available evidence showed the applicant “was healthy, worked full time and was relatively pain free” until the date of the car accident. Given that the applicant’s childhood “war experiences in Sierra Leone” were “many years ago,” the adjudicator concluded that the car accident was responsible for the applicant’s current medical impairments.

Proving Eligibility

To qualify for an income replacement benefit, an applicant must suffer “from a substantial inability to perform the essential tasks of her or his employment.” In this case, the essential tasks of the applicant’s warehouse job included packing and lifting boxes, scanning and counting products, and shipping items.

The applicant presented medical testimony from multiple doctors, as well as a Disability Certificate from her chiropractor, to support her claim that she could no longer perform those tasks. According to the Disability Certificate, she suffered from “[s]prain & strain of cervical and thoracic spine, lumbar spine, [and] shoulder joint,” in addition to her headaches and insomnia.

Separately, the applicant’s psychologist diagnosed her with major depressive disorder, severe post-traumatic stress disorder, and related mental impairments. Finally, a chronic pain expert told the Tribunal that the applicant “will not be able to return to her pre-accident level of functioning at her employment” due to chronic pain syndrome.

Tribunal Underwhelmed by Insurer’s Medical Evidence

To rebut the applicant’s extensive medical evidence, the insurance company presented testimony from three experts of its own. All three argued that the applicant “does not suffer from a substantial inability to perform the essential tasks as a general labourer.”

The adjudicator did not find these experts as credible as the applicant’s doctors. For example, the insurer employed a family doctor to dispute the applicant’s claim that she suffered from chronic pain syndrome. But as the adjudicator noted, this doctor was not “an expert in the field of chronic pain.” Accordingly, the adjudicator gave only “limited weight” to his testimony.

The insurer also presented a psychologist who examined the applicant one time and concluded she did not “suffer a substantial psychological inability to perform the essential tasks of her pre-accident employment.” The problem with this testimony, the adjudicator said, was that the psychologist did not “do any kind of in depth analysis of what [the applicant] did for work.”

In fact, the psychologist admitted under cross-examination that he had no idea what the applicant’s job was before her accident.

Ultimately, the adjudicator held that the applicant was entitled to an income replacement benefit (with interest). He declined to make a special award because he said the insurer’s initial actions were not “so egregious” as to be considered unreasonable.

CONTACT PRESZLER INJURY LAWYERS

If the accident benefits to which you should be entitled were unfairly denied by your insurance provider, contact Preszler Injury Lawyers today and receive a free initial consultation on your case. To learn more, speak with our Ontario accident benefits lawyers by calling 1-800-JUSTICE.