Category: Income Replacement Benefits

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”.

Nash v. Aviva General Insurance Company (19-010799)

The claimant sought entitlement to IRBs. The insurer brought a preliminary motion to strike evidence found in the claimant’s document brief, arguing that the evidence was hearsay of unproven allegations and irrelevant to the matters to be determined at the hearing. Adjudicator Farlam dismissed the insurer’s motion, stating that evidence is rarely excluded prior to a hearing by the Tribunal. Having heard no evidence from either the claimant or the witnesses, the Adjudicator was unable to determine whether the evidence would be relevant. With respect to IRBs, the adjudicator found that there was insufficient medical evidence to establish that the claimant suffered a substantial inability to complete the essential tasks of employment. There was no documentary evidence from either of the claimant’s pre-accident employers, post-accident employers, or the claimant’s union to suggest that he was substantially unable to perform the essential tasks of his employment, that he was let go for that reason, or that he resigned for that reason. The claim for IRBs was dismissed.

Nijjar v. Pembridge Insurance Company (19-011065)

The claimant disputed his entitlement to IRBs for an 18 month period and interest on medical benefits that had been resolved. Adjudicator Lake dismissed the claim for IRBs. She placed little weight on a “Physical Description of Job” sheet and a job description attached to an employer’s confirmation form that indicated a physically demanding job, because of contradictory findings. For example, the claimant had reported during IEs that his job was not heavy but required extended standing. The Adjudicator was unable to clearly determine the claimant’s job title or duties, and as such was unable to determine which job duties he was unable to perform. Interest was awarded on the two medical benefits from the date they were incurred. She dismissed the argument that interest should not be payable until the date that the claimant submitted requested medical records from his family doctor.

R.P. v. Aviva General Insurance (18-000131)

The claimant requested reconsideration of the Tribunal’s decision denying IRBs. Specifically, the claimant alleged that the Tribunal made a significant error in fact or law by failing to fully consider medical evidence and the claimant’s testimony. The claimant requested that an Order be made cancelling the decision and that IRBs be awarded with interest. Adjudicator Létourneau dismissed the request. He noted that, upon review of the decision and hearing materials, the evidence and testimony that the claimant alleged was not considered, was in fact considered in some detail and was specifically mentioned in the original decision, and the Tribunal had compared multiple reports to one another when weighing the overall evidence to reach a conclusion. The claimant further attempted to question the credentials and conclusions of the IE physiatrist. Adjudicator Létourneau pointed out that this was an attempt to re-argue the previous case, and the claimant should have made these submissions in the original pleadings.

Lin v. Aviva Insurance Canada (19-006064)

The claimant sought to IRBs and further chiropractic treatment. The insurer raised a preliminary issue that the claimant improperly relied on three exhibits that were not previously served on the insurer and sought to have them struck. Adjudicator Norris agreed holding that the claimant failed to submit evidence to prove that the documents were previously disclosed or to explain the failure to properly disclose them. With respect to IRBs, the insurer paid the benefit until May 27, 2018, when it concluded that the claimant no longer qualified. The adjudicator agreed with the insurer’s decision, stating that the claimant failed to provide evidence that any of her healthcare professionals recommended that she refrain from her pre-accident employment as a supermarket cashier. Finally, the adjudicator found that the treatment plan for chiropractic treatment was not reasonable and necessary because the family physician’s treatment recommendations were untimely and there were no treatment records showing how or if the claimant benefitted from the treatment. The claimant’s family physician made no clear recommendations for the claimant to continue with treatment during the period leading up to and around the submission of the treatment plan.

Aviva General Insurance Company v. Muthusamythevar (19-009392)

The insurer applied to the LAT seeking repayment of an overpayment of IRBs made as a result of wilful misrepresentation. Adjudicator Boyce found that the insured failed to notify the insurer when he returned to full-time work, and he continued to collect IRB payments while working full time. Adjudicator Boyce agreed with previous LAT decisions that “silence or failure to report” can constitute wilful misrepresentation, and found that the insurer was entitled to repayment of IRBs made as a result of wilful misrepresentation, plus interest.

B.L.J. v. The Co-Operators Company (18-012005)

The claimant applied to the LAT seeking entitlement to medical benefits, IRBs, and ACBs. Prior to the accident, the claimant worked full-time at a restaurant. After the accident, she was off work for several months before starting a volunteer position at a residence for assisted living that transitioned into a part-time job. She continued to work in the new part-time position into the post-104 week period. Her previous employment was no longer available to her. Adjudicator Victor found that the post-104 part-time position was substantially different from the claimant’s pre-accident position in nature, status, and remuneration. Adjudicator Victor stated: “I have difficulty finding that [the claimant] is suited to the part-time job she is undertaking, let alone the high paced, full-time job she previously held.” Adjudicator Victor found that the claimant was entitled to IRBs to date (i.e., into the post-104 period). She was not entitled to ACBs or the in-dispute occupational therapy services.

W.A. v. Aviva General Insurance (19-000287)

The claimant sought reconsideration of the Tribunal’s decision denying his entitlement to income replacement benefits. Vice Chair Farlam dismissed the claimant’s reconsideration request, noting that reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. Vice Chair Farm reviewed the decision, and was satisfied that the totality of the medical evidence was considered and reasonable conclusions were reached based on the evidence as a whole, including credibility problems inherent in the evidence. Vice Chair Farlam also noted that all “new evidence” relied upon by the claimant on reconsideration existed and could have been obtained prior to the hearing.