Category: Income Replacement Benefits

P.B. v. The Co-operators Insurance Company (19-008343)

The claimant was receiving IRBs of $400 per week. She settled her action against her LTD provider. The LTD release indicated that it covered all claims being made against the LTD provider, including punitive damages and costs. The insurer argued that it was entitled to deduct from IRBs the amounts received from the LTD settlement. Adjudicator Boyce disagreed with the insurer and held that it could not deduct the settlement. The inclusion of other types of compensation in the LTD release meant that the settlement could not be treated as income replacement assistance. The release did not provide any further information to allow the insurer to determine which amounts were for LTD benefits and which amounts were for other compensation. While the insurer improperly deducted the LTD settlement from IRBs, Adjudicator Boyce held that a special award was not warranted. He accepted that the facts of the case presented a genuine dispute over the deductibility of the LTD settlement.

M.M. v. Aviva Insurance Co. (17-006475)

The claimant requested reconsideration of Adjudicator Boyce’s decision in which he determined that the claimant was not entitled to IRBs (among other things). Adjudicator Boyce again reviewed the submissions and evidence before him and upheld his previous decision. The claimant alleged that accepting the surveillance evidence presented by the insurer did not show psychological or emotional struggle. While Adjudicator Boyce agreed, as he had in his original decision, he noted that while video evidence did not show psychological impacts, it did show that the claimant was working at her job and doing all of the required tasks she had told independent assessors she was unable to perform; thus showing she had an ability to return to her pre-accident employment. The reconsideration was dismissed.

S.A. v. Aviva Insurance Canada (18-004334)

The claimant sought entitlement to IRBs in the amount of $195.81 per week, the cost of an IRB calculation report, interest and a special award. The claimant submitted that from March 9, 2016 to April 30, 2016, he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a floor installer due to the physical and psychological impairments he sustained. The claimant was working approximately 10 hours per day as a floor installer and was also employed as a server. The claimant began to receive chiropractic treatment a few weeks post-accident. According to the OCF-3, the claimant was said to be unable to perform the essential tasks of his employment, but was able to return on modified duties and specifically, “the applicant reports returning to work despite medical advice to refrain from work”. The insurer received a second copy of the OCF-3, one day prior to the claimant’s return to work, but the OCF-3 was altered to remove the information that the claimant had returned to work post-accident and modified duties were no longer listed as being available. Adjudicator Gosio concluded that the claimant was not entitled to the IRB as the claimant only saw his family physician once for accident related issues, he had returned to his pre-accident employment with modifications, and the medical evidence suggested that he was dealing with primarily soft tissue injuries that were successfully managed through treatment modalities. There was no evidence or submissions which indicated that the claimant was suffering from anxiety. With regards to the IRB calculation report, Adjudicator Gosio found that the report was reasonable and necessary as the claimant was self employed, which could complicate the calculation and having a member of a designated body prepare the report was acceptable in the circumstances.

S.S. v. The Personal Insurance Company (19-004026)

The claimant sought entitlement to IRBs and removal from the MIG. Adjudicator Lake concluded that the claimant was not entitled to IRBs, but that his injuries fell outside of the MIG. With regard to IRBs, the claimant failed to prove that he was substantially unable to perform the essential tasks of his pre-accident employment. A note from the claimant’s family physician was not persuasive because the claimant had not attended the physician to get the note nor had he attended for six months. The claimant also was not attending for any physical treatment for his symptoms. Regarding the MIG, Adjudicator Lake accepted that the claimant suffered from psychological symptoms including anxiety.

L.A. v. Wawanesa Mutual Insurance Company (19-007357)

The claimant sought entitlement to IRBs. While he was unemployed at the time of the accident, he argued that he was receiving EI benefits. The insurer argued that the claimant’s EI benefits had expired one week before the accident and he was therefore not entitled to IRBs. Adjudicator Johal agreed with the insurer. The claimant was required to prove that he was receiving EI benefits when the accident occurred. While the claimant did receive a cheque from EI after the accident, it was for a period ending prior to the accident and his benefits period was at an end.

M.V. v. Aviva General Insurance Company (18-011523)

The claimant sought entitlement to IRBs and removal from the MIG. Vice Chair Farlam concluded that the claimant was not entitled to IRBs and that his injuries fell within the MIG. The medical evidence provided showed only soft tissue injuries, and insufficient objective evidence was led regarding chronic pain or psychological impairment. There were also multiple inconsistencies with the claimant’s reporting that called into question the medical opinions based on the claimant’s self-reported symptoms. Regarding IRBs, the claimant himself said during IE assessments that he was not disabled from working from a psychological perspective, and no evidence from the family physician was submitted regarding the claimant’s ability to return to work.

R.T. v. Aviva General Insurance (19-007347)

The claimant sought entitlement to IRBs and further physiotherapy treatment. Adjudicator Watt dismissed both claims. He held that the claimant failed to submit evidence that would prove that pain prevented her from returning to work. He also noted that the claimant was self-limiting in assessments and that objective testing showed full ranges of motion. The proposed treatment plan did not comment on why further passive therapy was required, or what relief may result from further treatment. The claimant was found to have met maximal medical recovery from such treatment.

M.L. v. Unifund Assurance Company (19-009999)

The claimant applied to the LAT seeking IRBs following her 2015 accident. She had returned to work after the accident, and the insurer denied entitlement to IRBs. After the 104 week mark, the claimant stopped working and submitted an Election to the insurer claiming IRBs. The insurer again denied IRBs, arguing that IRBs had been denied four years prior and the claimant failed to establish entitlement to IRBs within the first 104 weeks. Notably, the claimant was deemed to have suffered a catastrophic impairment as a result of the accident in 2019. Adjudicator Boyce found that the limitation period applied to the IRB claim, and the claimant failed to establish IRB eligibility because she did not suffer a substantial inability within the first 104 weeks after the accident, regardless of her deteriorating condition after the 104 week mark. He rejected the claimant’s argument that Tomec would create a new date of discoverability for the IRB claim.

P.M. v. Aviva General Insurance (18-009518)

The insurer was paying the claimant IRBs for over a year after the accident when it suspended IRBs due to the claimant’s failure to obtain necessary treatment and in providing relevant information under section 33 (the status of recommended psychological treatments and the updated clinical notes and records from the family physician). IRBs were reinstated after the claimant submitted a treatment plan for psychological treatment and remain ongoing. She applied to the LAT regarding the IRBs withheld for nine months. Adjudicator Makhamra concluded that the claimant was entitled to payment of the withheld IRBs. First, she held that while the claimant was in breach of section 33, the claimant had a reasonable explanation because she believed she was making best efforts and was complying with her family physician’s recommendations. She also believed the insurer had the ability to obtain the medical records with her consent. Second, the adjudicator held that the claimant was not in breach of section 57 as the claimant was receiving help for her psychological symptoms from her family physician and a social worker during the period of suspension.

N.Z. v. Economical Insurance (18-009611)

The self-employed claimant disputed entitlement to IRBs, which the insurer was not paying because it had requested further income documentation which the claimant failed to provide. The insurer had suspended IRBs under section 33 until the claimant complied with the requests. As a preliminary matter, Adjudicator Mazerolle allowed the insurer to submit late surveillance reports because they showed the claimant attending his place of work at a time he claimed he was not working. He also allowed the claimant to submit a late accounting report, reasoning that the insurer’s ability to cross-examine the accountant eliminated any prejudice. In terms of pre-accident records, Adjudicator Mazerolle concluded that the claimants Notices of Assessments for the year of the accident and the year prior to the accident were sufficient to calculate the weekly base income, stating that the SABS stated that income reported to the CRA was appropriate for calculating an IRB. In terms of post-accident records, Adjudicator Mazerolle held that the insurer was justified in requesting additional information (corporate tax filings, information about the claimant’s work duties and hours) because it appeared that the claimant was continuing with some level of work while claiming that he was unable to do so. The insurer was permitted to suspend payment of IRBs until the claimant provided the requested records.