Sep 1, 2017
Hughes Amys' Sabina Arulampalam successfully defends non-earner benefits claim before FSCO Arbitrator
Author Michael S. Teitelbaum
Related Lawyers Sabina Arulampalam and Linda Kiley
Congratulations to our Sabina Arulampalam who was successful in the defence of a SABS non-earner benefits claim in which FSCO Arbitrator King held that the applicant had not established entitlement to such benefits.
In Graveline and Intact
, the applicant was involved in a November 2009 single vehicle accident. Arbitrator King held that the "medical and other documentation does not support a finding that the Applicant was in perfect health around the time of the accident as he claimed, or that he broke his neck in the accident, or that any resulting impairment(s) continuously prevented him from carrying on all his pre-accident activities".
The Arbitrator also held that in terms of the strict test for proving entitlement to non-earner benefits, (per, among other decisions, the Ontario Court of Appeal's in Heath v. Economical
), "[e]ven if I were satisfied that as a result of the accident the Applicant suffered impairment(s) which prevented him from taking part in substantially all of his typical pre-accident activities, I am not satisfied that any such impairment(s) was continuous".
The Arbitrator also stated:
"Absent reliable and contemporaneous evidence to the contrary, I rely on the report provided by the Applicant's neurosurgeon issued on November 10, 2010..., which indicated that one year after the accident, the Applicant's pain had resolved and that he only had discomfort in his neck 'occasionally'. I find that within the two years after the accident, any impairments suffered as a result of the accident were more than just briefly interrupted and were not continuous. Therefore the Applicant does not qualify for non-earner benefits."
The Arbitrator also noted that the insurer was prepared to introduce expert evidence at the hearing and she made the procedural decision not to hear from its experts. She noted that "[a]s the Applicant had not been successful at proving that he was entitled to the non-earner benefit, requiring the Applicant to travel from his home in Elliott Lake to attend further hearing days in Sudbury and potentially expose him to unnecessary increased expenses would be inappropriate and would demonstrate a lack of respect for the Applicant".
Sabina advises that she benefited from the support and guidance of our Linda Kiley.
Well Done, Sabina and Linda!
The non-cuttable and non-pasteable version of the decision is attached.