Category: Income Replacement Benefits

K.K. v. Aviva Insurance Canada (19-001300)

The self-represented claimant sought IRBs, medical benefits, interest, and a special award. Adjudicator Lake dismissed the claims. With respect to the claim for IRBs, Adjudicator Lake found that the insurer’s surveillance was persuasive as it showed the claimant working at a construction site completing various physical tasks, including carrying two cinderblocks. Adjudicator Lake also noted that the claimant’s evidence was inconsistent with respect to when he returned to work and the claimant did not submit any evidence of his post-accident work status, income, or pay stubs. Adjudicator Lake noted that when she attempted to ask the claimant about his post-accident earnings, he provided vague answers. With respect to medical benefits, Adjudicator Lake relied on the records of the claimant’s general practitioner and the IE report to conclude that the proposed treatment plans were not reasonable or necessary. In particular, Adjudicator Lake noted that at no time did the claimant general practitioner recommend chiropractic treatment.

Baskaran v. Co-operators General Insurance Company (19-012169)

The claimant applied to the LAT disputing entitlement to IRBs and two medical benefits. The insurer had requested IEs to address the post-104 week IRB test, which the claimant refused to attend. The insurer argued that the claimant could not proceed with the dispute until attending IEs. The claimant argued that she had attended IEs addressing the pre-104 IRB test, and that the insurer was not permitted to assess for a benefit it was not paying. Adjudicator Grant agreed with the insurer and barred the claimant from proceeding with the dispute. He held that the insurer was not required to re-instate IRBs in order to assess post-104 week IRB entitlement. The claimant had submitted multiple reports addressing the post-104 week IRB test, while the insurer had none. Because of the change in statutory test, it was reasonable for the insurer to assess the claimant for entitlement, particularly given that she had obtained reports supporting the benefit. The prejudice to the insurer if it did not have its own assessments to address the IRB test was greater than the prejudice to the claimant of being required to attend. There was also a clear change in the claimant’s circumstances as her son had bene fatally stabbed after the insurer’s initial IRB IEs, and the claimant psychological functioning had worsened considerably.

H.M.L. v. Northbridge Personal Insurance Company (19-000375)

The claimant requested reconsideration of the Tribunal’s decision that she did not meet the post-104 week IRB test. The claimant argued that she received catastrophic impairment assessments that were not available at the time of the decision and which would change the Tribunal’s decision. Vice Chair Mather dismissed the reconsideration request. The claimant had received her section 25 catastrophic impairment assessments after the due date for written submissions, but before the Tribunal rendered a decision. Because the assessments were in the claimant’s possession before the Tribunal’s decision, she ought to have brought a motion to have the Tribunal consider the assessments. Vice Mather also held that the assessments were unlikely to have changed the Tribunal’s decision. The information and opinions in the assessments were contradicted by the surveillance of the claimant. The assessments also did not provide an opinion on the claimant’s ability to work in a suitable employment or self-employment, as they were only directed towards the catastrophic impairment test.

H.M.L. v. Northbridge Personal Insurance Company (19-000375)

The claimant requested reconsideration of the Tribunal’s decision that she did not meet the post-104 week IRB test. The claimant argued that she received catastrophic impairment assessments that were not available at the time of the decision and which would change the Tribunal’s decision. Vice Chair Mather dismissed the reconsideration request. The claimant had received her section 25 catastrophic impairment assessments after the due date for written submissions, but before the Tribunal rendered a decision. Because the assessments were in the claimant’s possession before the Tribunal’s decision, she ought to have brought a motion to have the Tribunal consider the assessments. Vice Mather also held that the assessments were unlikely to have changed the Tribunal’s decision. The information and opinions in the assessments were contradicted by the surveillance of the claimant. The assessments also did not provide an opinion on the claimant’s ability to work in a suitable employment or self-employment, as they were only directed towards the catastrophic impairment test.

L.P.C. v. Aviva Insurance Canada (19-001009)

The claimant applied to the LAT requesting ongoing IRBs, removal from the MIG, various medical benefits, and a special award. Before the hearing, the insurer removed the claimant from the MIG, approved the four disputed treatment plans, and approved IRBs up to the 104 week mark. The claimant continued with the claim for post-104 week IRBs and a special award. Adjudicator Shapiro held that the claimant suffered a complete inability to engage in any employment, and awarded post-104 week IRBs. The claimant had been approved for CPP Disability Benefits and LTD benefits in relation to the same injuries. The claimant had limited formal education, worked in a physical job before the accident, and had only rudimentary English skills. The IEs the insurer relied on were form only four months after the accident, and failed to consider the psychological impairments that continued to worsen over time. The surveillance of the claimant did not demonstrate abilities in excess of what the claimant or her treatment providers were reporting. Adjudicator Shapiro also granted a special award of 30 percent on the medical benefits that had been denied based on the MIG. The insurer’s psychological IE had noted a psychological diagnosis, but also stated that it could be treated within the MIG. The insurer ought to have removed the claimant from the MIG once it was aware of the diagnosis. The IE assessor’s opinion about treatment being available within the MIG limits was a legal conclusion rather than a medical opinion, which the insurer should have known not to accept. No special award was given on IRBs as the medical evidence supporting post-104 week IRBs was only provided to the insurer close to the hearing date.

T.M. v. Aviva General Insurance (18-010477)

The claimant sought reconsideration of the Tribunal’s decision dismissing his claim for IRBs. The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to repayment. Both requests for reconsideration were denied. Regarding the claimant’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error of law in finding that the claimant was not employed at the time of the accident and that she had not earned employment income prior to the accident. Regarding the insurer’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error in conclude that the insurer’s request for repayment sent via email did not comply with section 64 of the SABS; the insurer required the consent of the claimant to send the notice for repayment by email, even though the claimant and insurer had communicated by email on previous instances.

T.M. v. Aviva General Insurance (18-010477)

The claimant sought reconsideration of the Tribunal’s decision dismissing his claim for IRBs. The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to repayment. Both requests for reconsideration were denied. Regarding the claimant’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error of law in finding that the claimant was not employed at the time of the accident and that she had not earned employment income prior to the accident. Regarding the insurer’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error in conclude that the insurer’s request for repayment sent via email did not comply with section 64 of the SABS; the insurer required the consent of the claimant to send the notice for repayment by email, even though the claimant and insurer had communicated by email on previous instances.

Baranov v. Aviva General Insurance (19-011094)

The claimant applied to the LAT disputing the quantum of IRBs he was entitled to. He also claimed the denied portions of two psychological treatment plans. The claimant was self-employed prior to the accident as a renovation contractor. He elected to use the 52 weeks of earnings prior to the accident rather than the last completed taxation year. Adjudicator Farlam accepted the accounting report of the insurer as it was based on the documentation provided by the claimant. The claimant’s own accountant used various assumptions and oral evidence from the claimant that was not supported by financial documentation. For example, the claimant did not provide purchase orders, invoices, sales summary, or time records. Adjudicator Farlam also denied the disputed portions of the psychological treatment plans. She accepted that the insurer’s decision to allow $99.75 per hour for psychotherapy was appropriate (rather than the $224.42 per hour claimed). She also held that the claimant failed to prove why “documentation support activity” was reasonable and necessary. The special award claim was also dismissed. The insurer’s delay in payment of IRBs was due to the claimant’s failure to provide financial documentation.

K.K. v. Aviva General Insurance (18-012611)

The claimant sought entitlement to post-104 week IRBs, physiotherapy, and a special award. Adjudicator Mather granted the claim for ongoing IRBs, but dismissed the claim for further physical therapy. She also granted a special award of 50 percent on IRBs. The claimant was a self-employed taxi driver for over a decade prior to the accident. He suffered a concussion in the subject accident which led to psychological impairments. He was also in a second accident and made a claim for accident benefits with the same insurer. The insurer denied IRBs based on IEs completed with regard to the subject accident (which concluded he did not have a psychological disorder) despite having IEs from the second accident in which the claimant was diagnosed with major depressive disorder, general anxiety, panic attacks, and vehicular phobia. The psychological IE in the subject accident ignored various relevant factors and cherry-picked evidence that was supportive of denying IRBs (such as the claimant attempting a return to work for a few hours per day). Given the claimant’s lack of other relevant job experience and poor English skills, there were no other potential types of employment that were suitable for him. Adjudicator Mather found the insurer’s denial of IRBs to be unacceptable. She held that the insurer failed in its adjusting of the claim by ignoring the psychological diagnoses in its own IEs related to the second accident. She also noted that the insurer continued to approve psychotherapy while taking the position the claimant did not have a psychological impairment preventing him from working. The claimed physiotherapy was dismissed as the claimant did not provide evidence of the need for further physical therapy. He also failed to provide evidence of treatment received to date or the progress that physical treatment provided.

Staszewski v. Intact Insurance Company (19-012409)

The claimant applied to the LAT seeking entitlement to pre- and post-104 IRBs. Three medicolegal reports noted the claimant had returned to work in some capacity since the accident. The insurer suspended the claimant’s entitlement to IRBs pursuant to section 33 of the SABS for failure to provide documentation regarding post-accident employment and income. The claimant argued that the insurer had suspended IRBs without justification. Adjudicator Parish found that the insurer was justified in requesting further documentation to confirm whether the claimant earned any post-accident income. An adverse inference was drawn relating to the claimant’s refusal to produce bank statements. Adjudicator Parish found that the insurer was not liable to pay IRBs to the claimant, pursuant to section 33(6) of the SABS.