Category: Income Replacement Benefits

Yan v. Certas Home and Auto Insurance Company (20-000630)

The claimant sought entitlement to IRBs, disputing both the quantum of benefits paid prior to termination and whether he was entitled to IRBs on an ongoing basis. The insurer calculated the claimant’s IRB quantum based on his income tax return for the year prior to the accident, as opposed to paystubs which showed higher earnings. Vice Chair Boyce found that the insurer’s calculation was correct, as the SABS directs insurers to rely on the amounts reported to and accepted by the CRA when calculating income, and any income that has not been reported to the CRA cannot not form part of the IRB calculation. Vice Chair Boyce further found that the claimant had not demonstrated ongoing entitlement to IRBs, as there was no objective medical evidence that he could not perform the sedentary tasks of his pre-accident employment as a result of the accident.

Kargol v. Aviva General Insurance (19-011590)

The claimant sought entitlement to pre- and post-104 week IRBs and a special award. Adjudicator Grant awarded IRBs from the date of loss and ongoing, holding that the claimant met both disability tests. The claimant had worked two jobs in the year before the accident. The first was as a sheet metal fabricator. The second was as a purchaser, processing manager, and shop helper. He quit his job two days before the accident according to a psychological report, though the claimant denied that during the hearing and said he was laid off because of downsizing. The claimant attempts to return to one of the jobs after the accident, but stopped after one week and had not returned to work any time before the LAT hearing. Adjudicator Grant accepted the opinions of the claimant’s orthopaedic surgeon and chronic pain expert that the accident related injuries prevented the claimant from engaging in the essential tasks of his pre-accident jobs, and prevented him from working in any similar jobs requiring physical labour. Adjudicator Grant awarded a special award of 10 percent on IRBs because the insurer had not shown any consideration of the claimant’s expert reports in the two years after receiving the reports and the LAT hearing.

Kazmi v. Pembridge Insurance Company (19-010107 and 20-001345)

The claimant applied to the LAT disputing entitlement to IRBs and two medical benefits. The matter proceeded by way of written hearing. Adjudicator Farlam found that the claimant was entitled to an IRB at the rate of $291 per week and awarded the two medical benefits plus interest. With respect to IRBs, the parties agreed that substantive entitlement was not an issue. The insurer argued that the claimant was not entitled to an IRB pursuant to s. 33(6) because he failed to provide documentation necessary to adjust his claim. Adjudicator Farlam held that the claimant responded to the insurer’s requests and there was no valid suspension of benefits pursuant to s. 33. Adjudicator Farlam noted that the claimant had valid reasons for not complying with the insurer’s requests, including misunderstanding the nature of the insurer’s request for medical documents, and finding that the claimant gave best efforts to obtain the requested documents. With respect to the disputed cost of a mattress, Adjudicator Farlam awarded this benefit as she preferred the evidence of the claimant’s treating physician to that of the IE occupational therapist. Adjudicator Farlam held that the treating physician likely knew the claimant best, diagnosed the claimant with chronic back pain, and wrote to the insurer asking it to consider funding a firm mattress. Adjudicator Farlam agreed that the mattress was reasonable and necessary. Adjudicator Farlam also awarded the cost of a chiropractic treatment plan based on the evidence of the claimant’s treating physicians, and noted that the claimant’s family physician wrote a letter to the insurer requesting it reinstate funding of chiropractic care.

R.K.K. v. Cooperators General Insurance Co (19-002834)

The claimant sought reconsideration of a decision dismissing the claimant’s claim for IRBs and medical benefits. Adjudicator McGhee allowed the reconsideration. Adjudicator McGhee found that the hearing adjudicator’s reasons did not identify key factual findings or demonstrate how the relevant legal tests applied to the facts. The hearing adjudicator failed to explain how he assigned less weight to the evidence of one expert over another, and failing to do so called into question whether the adjudicator was alert and sensitive to the matter before him. Adjudicator McGhee noted that the matter proceeded before the hearing adjudicator in a four-day teleconference hearing and included testimony by the claimant and six expert witnesses. Adjudicator McGhee held that it would be inappropriate and an unnecessary cost and delay to convene a new hearing before a different adjudicator. Instead, Adjudicator McGhee ordered a redetermination on the existing record by the original adjudicator.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.

Branden v. Co-operators General Insurance Company (19-008343)

The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to deduct a long-term disability settlement from IRBs; the claimant sought reconsideration of the Tribunal’s decision that a special award was not payable. Vice Chair Boyce rejected both reconsideration requests. He found no error of law relating to the Tribunal’s conclusions about “gross weekly payment for loss of income” and rejected the insurer’s arguments regarding double recovery. The claimant’s receipt of LTD benefits was not a payment “under an income continuation benefit plan”, but rather a payment to settle a legal obligation resulting from litigation. The Tribunal’s decision not to grant a special award was within its discretion. The claimant was not automatically entitled to a special award simply because she recovered IRBs in the dispute. The insurer showed that it was not being “stubborn” or “inflexible” because it continued to obtain updated IRB reports as new information was received. The insurer’s position regarding deductibility of the LTD settlement was a genuine dispute that the parties had differing views on interpretation.

S.R. v Traders General Insurance Company (17-004556)

The claimant filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to pre-104 IRBs but was not entitled to post-104 IRBs. The claimant argued that the adjudicator had made errors in fact and law, including incorrectly applying the test for IRBs. In the hearing decision, the adjudicator took into consideration post-accident volunteer and work training activities when deciding that the claimant did not meet the test for post-104 IRBs. As a preliminary issue, Adjudicator Reilly agreed with the insurer that the claimant’s Reply submissions should not be considered for the Reconsideration decision, as the Reply raised new issues or facts not raised in the hearing, the Request for Reconsideration, or the Response by the insurer. Adjudicator Reilly found that the adjudicator’s decision provided well-reasoned analysis of the submissions and medical evidence of both parties, and correctly applied the test for post-104 IRBs. The request for reconsideration was dismissed.

Spence v. Aviva Insurance Company of Canada (19-013457)

The claimant and insurer disagreed over the deduction of EI sickness benefits from IRBs. Vice Chair Boyce held that EI sickness benefits were not deductible from IRBs because they were not considered “gross employment income”. He distinguished cases which permitted the deduction of EI maternity benefits – which were received because a person is employed and otherwise able to work – from EI sickness benefits, which a person receives because he or she is unable to work due to injury or impairment.

Jamon v. The Co-operators (19-006256)

The claimant sought entitlement to IRBs and various medical/rehabilitation benefits, including an attendant care assessment and functional abilities assessment. With respect to IRBs, Adjudicator Parish found that the claimant had proven on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment as a supervisor at Dairy Queen, emphasizing the claimant’s ongoing post-concussion symptoms, which were not addressed in the insurer’s IE reports. Adjudicator Parish further found that the attendant care assessment was reasonable and necessary because of the claimant’s self-reported difficulty with performing her personal care tasks, and that the functional abilities assessment was reasonable and necessary as it could have assisted with the determination of ongoing entitlement to IRBs. In light of her findings, Adjudicator Parish also granted a 25 percent special award on the attendant care and functional abilities assessment due to the insurer’s failure to investigate the claimant’s concussive symptoms.

S.P. v. Aviva General Insurance Company (18-008876)

The claimant sought reconsideration of a LAT dispute denying her entitlement to IRBs and medical benefits. The claimant was represented by counsel at the hearing and with respect to the reconsideration application. Adjudicator Boyce noted that the claimant’s reconsideration submissions were 24 pages single spaced and made sweeping accusations that the adjudicator denied her procedural fairness, acted as an advocate for the insurer, and was biased towards her. Adjudicator Boyce was critical of the fact that the claimant made allegations in her written submissions about what happened during the 1-day in-person hearing without providing a transcript of the hearing to support her arguments. The claimant argued she was denied procedural justice to cross-examine the investigator however Adjudicator Boyce noted that the claimant did not provide any evidence that she summonsed the investigator who conducted the surveillance. Ultimately, Adjudicator Boyce dismissed all of the claimant’s grounds for reconsideration.