Category: Income Replacement Benefits

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.

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.

Unifund Assurance Co. v. M.D.C. (19-010729)

The insured applied to the LAT for various benefits. The insurer added repayment of an overpayment of IRBs to the issues in dispute. The insured failed to attend multiple case conferences, and his application was dismissed without a hearing as the LAT determined he had abandoned his claim. The matter proceeded to a written hearing on the issue of whether the insurer was entitled to a repayment of IRBs. 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. In addition, the insured submitted an Election of Income Replacement benefits after he had returned to work. Adjudicator Boyce found that the insurer was entitled to repayment of IRBs made as a result of wilful misrepresentation.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought a catastrophic impairment based on a 55 percent impairment, IRBs, housekeeping expenses, and medical benefits. The insurer argued that the claimant’s impairment arose from an earlier workplace accident, and that he was not entitled to any of the claimed benefits or a catastrophic impairment designation. Adjudicator Flude agreed with the insurer and dismissed the claims. He held that the claimant failed to prove that the accident was the cause of his impairments. The primary issue related to tears in the shoulder. Adjudicator Flude held that that tears were a result of the workplace injury, and not the accident. Further, he found that the claimant’s experts wrongly attributed 18 percent WPI for potential future surgery, holding that the SABS did not permit speculative future impairment in the WPI calculation. He also concluded that the three percent WPI for medication was not proper to include because it related to medications for conditions unrelated to the accident. Without those percentages, the claimant’s total WPI was below 55 percent. Adjudicator Flude also concluded that the claimant was not entitled to IRBs because he was not working at the time of the accident. The housekeeping expenses were denied as well. Only after the accident did he re-start his carpentry business. Finally, the claimed medical benefits were denied because they related to treatment for the shoulder, and the claimant also failed to prove that the treatment was providing relief.