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January 27, 2010

Painful Symptoms Alone Insufficient to Claim Non-earner Benefits

Mangallon v. T.T.C. Insurance Company Ltd., FSCO A07-001813, December 18, 2009

A FSCO decision recently confirmed the stringent test for entitlement to non-earner benefits.

Ms. Mangallon was injured on October 27, 2005 when the rear doors of a T.T.C. bus suddenly closed on her as she attempted to board. She applied for a non-earner benefit, which T.T.C. refused to pay. T.T.C. argued that the incident was a minor one and did not result in an impairment that affected the claimant’s ability to function to a degree that would qualify her for a non-earner benefit. T.T.C. took the position that Ms. Mangallon’s post-accident headaches, dizziness, whole body pain and depression pre-dated the accident and were due to long standing and serious heart disease, diabetes and depression, which were not related to the accident.

The arbitrator agreed with T.T.C. Arbitrator Sapin held that the test for entitlement to a non-earner benefit is stringent. An impairment sustained in the accident must be one that continuously prevents the insured from engaging in substantially all of the activities in which she engaged before the accident. Arbitrator Sapin quoted from the Ontario Court of Appeal decision in Heath v. Economical stating that where pain is the primary factor, “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.” Arbitrator Sapin further held that accident related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient to qualify a person for a non-earner benefit. This is the case even though such pain might entitle the person to damages for pain and suffering in a tort action. Arbitrator Sapin was not convinced that Ms. Mangallon met the test for non-earner benefits.

By confirming the stringent test for entitlement for non-earner benefits, this decision may serve to limit the number of claims for non-earner benefits, especially in cases where the claimant has substantial pre-accident history and causation of his or her post-accident symptoms is doubtful.

1 comment:

  1. very heart warming and well written post. i would like to thank the author and add that Working in an office carries its own share of risks. Neck and shoulder injuries and eye problems tend to occur in office environments with poorly designed workstations, seating, bad quality computer screens, lighting and inadequate breaks. The TUC when referring to repetitive strain injury say that its prevention requires 'an acknowledgement that workers are not there to provide the flexibility in the system, through contorting and stressing their bodies and brains to cope with poorly designed equipment or systems of work, or through increasing their work rate to accommodate production demands, or because the workforce is too stretched, too cowed or too insecure to complain.' if you are going in for Accident Compensation claim i would strongly advise no win no fee solicitors