Category: Income Replacement Benefits

Cox v. Wawanesa Mutual Insurance Company (19-012281)

The claimant was involved in a serious motor vehicle accident in 2014. She received IRBs for four years, until they were terminated based on multidisciplinary s. 44 opinions. The claimant applied to the LAT seeking entitlement to post-104 week income replacement benefits and a special award. As a preliminary issue, the claimant requested that the insurer’s surveillance evidence be excluded as it was served 1.5 months after the deadline for document exchange. Adjudicator Paluch declined to exclude the surveillance evidence, finding that it was relevant and that the claimant was not significantly prejudiced by its inclusion as the surveillance materials were served a month prior to the hearing. The claimant declined an offer to adjourn the hearing to allow time for her experts to review the surveillance. Adjudicator Paluch found that the insurer’s multidisciplinary assessments were greatly undermined by the fact that they did not investigate the severity of the claimant’s psychological problems and chronic pain syndrome, or fully assess the claimant’s ability to work a full workday or workweek. Adjudicator Paluch found that the claimant was entitled to further post-104 IRBs to date and ongoing. The request for a special award was denied.

Jeyakumar v. Aviva General Insurance (19-010878)

The claimant applied to the LAT seeking entitlement to pre-104 week income replacement benefits. The claimant had returned to work at the time of the hearing and was seeking entitlement to IRBs for the period before he returned to work. Adjudicator Boyce found that the claimant failed to demonstrate that he had a substantial inability to perform the essential tasks of his pre-accident employment. The claimant submitted insufficient evidence to support that he was terminated from his post-accident employment as a result of accident-related impairments. Although the s. 25 and s. 44 psychology assessors diagnosed the claimant with accident-related impairments, they did not opine that he was unable to perform his pre-accident employment as a result of the impairments. Adjudicator Boyce held that it was not enough for the claimant to simply believe that he could not continue to work, in order to receive an IRB. There must be more evidence of a substantial inability than the claimant’s self-reporting. Adjudicator Boyce found that at minimum the evidence should come in the form of an objective medical opinion that would support the claimant’s subjective reporting. The claimant’s OCF-3 and chronic pain report were given little weight as they were completed after the claimant had returned to work.

Jama v. Unifund (20-005328)

The insurer brought a preliminary issue hearing seeking an order that the claimant was not entitled to receive an IRB pursuant to section 57, which outlines an insured person’s responsibility to pursue reasonable, necessary, and available forms of treatment if the insured person continues to receive a weekly benefit, such as an IRB. Adjudicator Mazerolle held that the insurer did not provide proper notice of its intention to cease payment of the claimant’s IRB and dismissed the insurer’s motion. Adjudicator Mazerolle found that the insurer did not provide proper notice per section 57(5) as the insurer did not make any specific mention of the IRB payment nor did the insurer advise the claimant of an intention to stop paying benefits in its notice letter. Adjudicator Mazerolle held that it was the insurer’s obligation to adhere to notice requirements if it was going to stop benefits.

Jones v. The Co-operators (19-013271)

The claimant applied to the LAT seeking entitlement to IRBs and medical benefits outside of the MIG. At the outset of the hearing, the claimant sought to change his claim for IRBs to a claim for NEBs. Claimant’s current counsel advised the LAT that he had not received the claimant’s file from a former counsel, and he had not been aware that the claimant had submitted an OCF-10 electing NEBs until he received the insurer’s hearing brief. The claimant relied on the Court of Appeal decision in Galdamez v. Allstate (2012 ONCA 508) for the proposition that an insured may qualify for IRBs but claim NEBs. Adjudicator Flude found the Galdamez decision to be distinguishable as it dealt with the previous version of the SABS, which did not provide for an irrevocable election of benefits (OCF-10). Adjudicator Flude denied the claimant the right to amend his application to advance a claim for NEBs, on the basis that it was barred because he qualified for IRBs (pursuant to s. 12 of the SABS) and because his claim for NEBs was brought beyond the two-year limitation period set out in section 56 of the SABS. Adjudicator Flude declined to extend the time for bringing the claim for NEBs under section 7 of the LAT Act, largely on the basis that the claim for NEBs was meritless. Adjudicator Flude found that the claimant was within the MIG and he was not entitled to IRBs. Adjudicator Flude also found that since the claimant did not report his pre-accident income to the CRA, the quantum of IRBs would have been zero if he satisfied the test for entitlement.

Manuel v. Certas Direct Insurance Company (19-008341)

The claimant disputed her entitlement to IRBs. The insurer agreed that the claimant was entitled to pre-104 week IRBs and so the central issue in the dispute was whether the insurer could deduct Employment Insurance (EI) maternity benefits and the employer’s “”top up”” benefits from the IRB payment. Adjudicator Grant found that the insurer was able to deduct EI maternity benefits and the employer top-up benefits for any period that IRBs were payable. Adjudicator Grant relied on the decision of SW v Certas in which Vice Chair Flude considered FSCO case law on whether EI maternity benefits were deductible. Adjudicator Grant agreed with Vice Chair Flude’s analysis. Adjudicator Grant agreed with the insurer that EI maternity benefits, unlike sickness or disability benefits, fall within the definition of gross employment income as per section 4(1) and section 47(3), and that section 4(1) specifically exclude disability and sickness benefits from IRB deduction. Adjudicator Grant also noted that the claimant was obligated to apply for any available collateral benefits before relying on benefits available to her and in this case, the EI maternity and employer top-up were benefits available to her and the insurer was therefore able to deduct these amounts from the IRB.

Hodge v. Aviva Insurance Canada (19-005751)

The claimant sought entitlement to IRBs from June 25, 2018 to March 2, 2019. Vice Chair Mather first heard a preliminary issue with respect to the Tribunal’s font and spacing specifications. Vice Chair Mather stated that it is open to a party to request an increase in page limits if they do not feel that they can properly make their case within the specified page limit. Second, Vice Mathers heard a preliminary issue with respect to the claimant submitting new evidence in their reply submissions. Vice Chair Mathers allowed the evidence to be heard because there was no prejudice to the insurer in doing so and the claimant met the deadline for exchanging documents. With respect to the claimant’s entitlement to IRBs, Vice Chair Mathers was not satisfied on the balance of probabilities that the claimant suffered a substantial inability to perform the essential tasks of his self-employment as a contractor. Vice Chair Mathers was not persuaded that the claimant met the test for IRBs because of the inconsistencies in his evidence, which affected his credibility. There were multiple contradictory reports with respect to whether or not the claimant had returned to work. Further, the claimant misled the reporting doctors by failing to mention his previous injuries.

Pollitt v. Certas Home and Auto Insurance Company (19-009201)

The claimant sought entitlement to IRBs in the amount of $885.21 per week, in excess of the statutory maximum of $400.00 per week as set out in the SABS. The insurer initially paid IRBs at the statutory maximum of $400.00 per week, and subsequently reduced payments to $16.00 per week based on the appropriate “”ramp down”” formula once the claimant turned 65. The claimant argued that the insurer’s calculation of his IRB violated sections 8 and 15 of the Canadian Charter of Rights and Freedoms. Vice Chair Boyce dismissed the claimant’s application, holding that the insurer’s calculations were correct and that the constitutional question and issues alleged by the claimant were not properly before the parties.

A.M. v. Aviva Insurance Company (19-004182)

The claimant requested reconsideration of the Tribunal’s preliminary issue decision barring the claimant from disputing IRBs. Adjudicator Grant dismissed the reconsideration. The claimant submitted that the Tribunal erred in equating the OCF-10 as a request for IRBs for less than the mandated seven working days lost. The claimant submitted the OCF-10 and she did not elect to receive NEBs although the OCF-3 indicated that she suffered a complete inability to carry on a normal life. The insurer submitted that this was not sufficient grounds to change the decision. There was no evidence that the claimant was not claiming entitlement to IRBs until August 14, 2019 when the claimant sent a letter to the insurer explaining the reasons for the delay in submitting the OCF-2. Adjudicator Grant considered that the claimant was represented in 2016 and there was no reasonable explanation for the delay between the January 16, 2017 notice letter and the claimant’s failure to appeal the denial before the limitation period expired. Adjudicator Grant did not find the claimant’s delay in her letter of explanation to the insurer to be reasonable. Even though the claimant had been hospitalized, the claimant’s representative could have contacted the insurer well before the limitation period to advise of the claimant’s situation. The claimant further argued that the insurer’s January 2017 denial letter of IRB entitlement was not valid when she did not stop working until February 2017. The insurer relied upon the Court of Appeal decision Sietzema v. Economical, which held that clear and unequivocal notice given by the insurer denying benefits was sufficient to trigger the limitation period. The insurer argued that if the claimant found the denial was improper, she had the right to dispute the denial within the two year limitation period. The OCF-10 submitted by the claimant electing IRBs after the completion of the OCF-1 and OCF-3 was an indication that it was applying for IRBs and was, therefore, notifying the insurer of her intent to apply for a specified benefit.

T.P. v. Wawanesa Insurance Company (18-003718)

The claimant sought entitlement to IRBs. Adjudicator Boyce found that the claimant was not entitled to payment of IRBs as he did not demonstrate that he met the substantial inability test. While the adjudicator accepted that the claimant was not working during the period in dispute, the claimant failed to provide any objective medical evidence to support that he was not working as a result of his accident-related pain or that his accident-related pain was preventing him from engaging in his essential pre-accident tasks. It is not enough for the claimant to simply state that he could not do something; there needed to be objective evidence of that inability. The adjudicator suggested that it should come in the form of an objective medical opinion or diagnostic imaging or an occupational therapy report that would contemporaneously support the claimant’s subjective reporting.

Sniderman v. Aviva Insurance Company (19-006657)

Prior to the accident the claimant worked in two jobs. The parties agreed that she was self-employed with respect to a bridal boutique company. The parties disagreed on whether the claimant was employed or self-employed with respect to a television and stereo repair shop owned and run by her husband. Adjudicator Johal concluded that the claimant was employed at her husband’s shop, rather than self-employed. The husband was the sole shareholder and director of the company. The claimant was a “vice president” but did not have signing authority. She was primarily responsible for purchasing and monitoring inventory levels. She handled financial matters and operational logistics (company standards, communications, store managers, staff scheduling, store hours, delivery and installation, and marketing). While the claimant was promoted in a newspaper article as a co-owner, the claimant did not write the article and said the description was incorrect. The claimant was paid a salary on a T4, had income tax and CPP contributions deducted from her salary, and filed her income tax returns as an employee. Her salary was in the expected market rate for her role. While she played an important role with the company, she did not have an ownership stake. Adjudicator Johal rejected the insurer’s argument that the claimant and her husband should be considered a partnership, as there was no evidence of a partnership agreement nor sufficient evidence to say that the business was being carried on “in common”.