Non-earner Benefits

On behalf of the Team of Bergeron Clifford LLP posted in Benefits on June 12, 2009

Unemployed persons injured in a car crash qualify for a weekly benefit as long as they can show that their injuries truly disrupt their normal lives. Insurance companies continue to challenge the law in an effort to make it more difficult to qualify for these important benefits.

In a recent Ontario trial, Economical Mutual Insurance Company had been ordered by a judge to pay its insured, Mr. Heath $185 per week as a non-earner benefit as a result of injuries sustained in a motor vehicle accident. Economical appealed.

The non-earner benefit is a no-fault benefit that is paid to individuals that were not working or caring for children at the time they are hurt in a car accident. Nothing is paid for the first 26 weeks after the accident, ostensibly to save insurance companies money and keep premiums down. After receiving no support for the first 26 weeks, in insured person has to then prove that her collision-related injuries prevent her from living her normal life. Bear in mind that if a person qualifies for the benefit, this means that the injured person who couldn’t carry on her normal life was forced to survive 26 weeks with no weekly benefit whatsoever from her car insurance company.

The appeal process appears to have been very difficult for Mr. Heath who represented himself. In the end, he was unable to make any submissions on his own behalf. Economical proceeded with the appeal. In the face of no opposition, the insurance company convinced the court that the initial trial judge had insufficient evidence to find that Mr. Heath suffered enough interference with his activities of normal life to qualify for the benefit. Mr. Heath’s trial victory was taken away without a word said on his behalf in the appeal.

The Court of Appeal took the opportunity to review some of the cases that have considered this important benefit. Most of the cases reviewed came from the Financial Services Commission, a government body that deals with disputes between insurance companies and individuals concerning entitlement to various accident benefits.

Several key points were identified. To qualify for a non-earner benefit, an individual must:

– show the difference between her activities and life circumstances before and after an accident;
– ensure that the court or arbitrator understands what her life was like over a reasonable period of time before the accident. It’s not enough to show a snap-shot of what things were like during a particularly good time before the accident;
– help the court or arbitrator understand what activities were important and meaningful – the judge or arbitrator may give those activities more careful consideration;
– show the judge or arbitrator that she’s been continuously prevented from engaging in those pre-accident activities. It’s not enough to show that she’s only sometimes prevented from doing them as a result of her collision-related injuries;
– show the court that the degree of interference with the activity is severe. Sometimes a person can do some of an activity but not enough to make it meaningful. The evidence has to show this.
– if it’s pain preventing her from engaging in the activity, show that the degree of pain is such that engaging in important daily activities is all but impossible

The Court of Appeal said that impairment must be severe before an individual will quality for this benefit but it said in an equally clear manner, that a person’s individual story and circumstances are vitally important and will be considered.

In the final analysis, the Court of Appeal did not hear Mr. Heath’s story. It’s a cautionary tale. A good personal injury lawyers understands that your unique circumstances are meaningful. Your unique story may be the difference between success and failure in court. The outcome may have been different for Mr. Heath if he’d hired a good personal injury lawyer to share his unique story with the Court of Appeal.

See the full decision.

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