Accident Benefit Article

THE NON-EARNER BENEFIT TEST: A REFRESHER

May 5, 2017

Lawyers routinely rely on the expertise of healthcare and rehabilitation professionals to establish their injured clients’ eligibility for accident benefits. Car accident injury victims who cannot work may be entitled to an income replacement benefit (IRB). Those who do not qualify for an IRB (full-time students, recent graduates, stay-at-home parents, unemployed and retired persons) may qualify for payment of a “non-earner” benefit (NEB).

For accidents that happened before June 1, 2016, the benefit was payable after the applicable six-month waiting period in the amount of $185.00 per week for the first two years and then $320.00 per week for life, provided the injured person established he or she “suffers a complete inability to carry on a normal life” as a result of an accident-related impairment. For accidents occurring on or after June 1, 2016 (subject to certain exceptions) the NEB is significantly curtailed, and only payable to eligible claimants at $185.00 per week for a maximum of two years after a four-week waiting period.

The NEB has always been a contentious benefit from the perspective of insurance companies. Insurers often deny payment of the NEB on the basis of an expert medical or other opinion stating that the claimant does not meet the test of “complete inability to carry on a normal life.” A literal reading of the test would suggest that eligibility would be reserved for only the most extreme injury victims. However, that is not the case.

Over the years, numerous arbitration and court decisions have interpreted the NEB test in a more nuanced rather than literal fashion. Unfortunately, medical and health professional experts are often not properly instructed by the lawyers who have sought out their expertise on the legal interpretation of the NEB test. Injury victims would be treated more fairly by their insurers and get better access to the benefits they are entitled to if more care was taken by lawyers to assist experts in understanding the appropriate analytical approach that arbitrators and courts demand in order to satisfy the NEB test.

The starting point is the accident benefits legislation. Section 12(1) of the Statutory Accident Benefits Schedule provides, in relevant part, as follows:

12. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following conditions:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

2. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident.

Section 3(7)(a) of the Schedule provides that “a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

The leading authority on the NEB test is the Court of Appeal for Ontario’s decision in Heath v. Economical Mutual Insurance Company (2009). 5 O.R. (3d) 785 (C.A.) where the court detailed the proper analytical approach to be undertaken:

Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant’s pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant’s post-accident condition.
Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snap-shot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.
In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities, which the claimant identifies as being important to his/her pre-accident life.
It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”
The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity. The manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.
In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

Under the Heath analysis, the question of whether the injuries sustained by the plaintiff’s accident prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident is to be viewed from a “qualitative perspective” requiring the relevant activities to be viewed as a whole, with the manner in which each activity is performed and quality of performance post-accident to be considered. Activities, which were more important to the claimant, will be weighed more heavily under this analysis. In the case of Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, the Court of Appeal held that “substantially all” does not mean “all”, although arbitration decisions from the Financial Services Commission of Ontario such as Todd v. State Farm (FSCO A00–001314, 2003) have held that “substantially” means more than a “goodly number” or even a majority.

The mere fact that an injured person is working full-time does not automatically disentitle him or her to non-earner benefits. In Galdamez, the court held that a person who suffers a severe diminution in their overall quality of life could still meet the test of entitlement to an NEB even if they are working.

The court gave the following example: “…in jobs where mobility is not a requirement (e.g., department store greeter, telemarketer, etc.), and the job was not of great importance in the claimant’s pre-accident life, it may be possible for a claimant who returns to his or her pre-accident employment following an accident to satisfy the test for non-earner benefits.” However, the court did caution that such situations will be “rare” and “unlikely”, the “possibility” still exists.

All of this is to say that the seemingly simple NEB test is not so simple. It is crucial that medical and health professional experts who have been asked to render an opinion on NEB eligibility understand the analytical approach demanded by courts and arbitrators. Otherwise, their expert opinions are going to be given any weight.