Category: Income Replacement Benefits

S.S.L. v. Certas Direct Insurance Company (19-004473)

The claimant sought removal from the MIG and entitlement to IRBs, two treatment plans for chiropractic services, and cost of examination. Prior to the hearing, the claimant withdrew her claims for the medical benefits and the costs of examinations. Adjudicator Norris held that the claimant could not dispute the MIG if no medical or rehabilitation benefits were in dispute. Adjudicator Norris concluded that the claimant was not entitled to IRBs because there was no compelling evidence to support her claim that she was disabled from working as an event planner. The evidence was clear that the claimant did not suffer physical or psychological impairment that would prevent her from completing her essential tasks of employment.

T.L.D. v. Aviva General Insurance Company (19-009050)

The claimant sought IRB, removal from the MIG, and various medical benefits. Adjudicator Grant held that the claimant failed to prove that the accident results in injuries preventing him from returning to his pre-accident employment in food delivery. He also concluded that the claimant’s injuries fell within the MIG. With regard to a hospital expense, the insurer argued that the claimant was required to submit it to his university insurance plan before seeking coverage under the SABS. Adjudicator Grant agreed that section 47(2) exempted the insurer from paying for the expense until the claimant had submitted it to his student plan.

H.M. v. Wawanesa Mutual Insurance Company (18-011655)

The claimant sought entitlement to pre-104 and post-104 weeks IRBs. The claimant was self-employed as a steel worker at the time of the accident and he owned 75 percent of a small steel fabrication business. Adjudicator Hans determined that the claimant established that he was substantially unable to perform the essential tasks of his pre-accident employment. The claimant provided convincing evidence regarding how his impairments affected his functionality and ability to perform the essential tasks. Adjudicator Hans agreed with the Functional Capacity Evaluation that the claimant did not meet the heavy physical demand level of his pre-accident employment. Adjudicator Hans noted that the focus of the test was broader than whether the claimant could perform some tasks, but whether he was substantially unable to perform the essential tasks of his pre-accident employment as a steel worker. The insurer argued that causation was an issue with respect to the applicant’s headaches, low back pain and right leg radiculopathy. However, Adjudicator Hans held that the claimant met his burden in establishing causation. Adjudicator Hans concluded that there was no convincing evidence documenting the claimant’s inability to engage in any employment for which he was reasonably suited and the claimant’s medical professionals did not conduct an analysis of the post-104 week test or make convincing substantive submissions in this regard. The applicant was not entitled to post-104 IRBs but he was entitled to receive weekly IRBs for the pre-104 period and interest on the overdue payments.

F.G. v. Aviva General Insurance (19-002587)

A preliminary issue hearing was held to address whether the limitation period barred the claimant’s IRB dispute. Adjudicator Norris held that the limitation period applied. The IRB denial was clear and unequivocal, and the limitation period did not “restart” when the insurer re-iterated its denial of IRBs in subsequent correspondence. Adjudicator Gosio did not extend the limitation period under section 7 of the LAT Act. The length of the delay was more than six months, there was no evidence of bona fide intention to appeal within the two year limitation period, the insurer would be prejudiced in its adjusting of the claim if the dispute was permitted to proceed, and there was insufficient evidence in support of the merits of the appeal.

C.G. v. Pembridge Insurance Company (19-010979)

The claimant disputed entitlement to IRBs. The insurer raised a preliminary issue that the claimant had not applied for IRBs within the first 104 weeks following the accident and therefore could not receive IRBs. Adjudicator Johal agreed with the insurer. The claimant had not submitted a Disability Certificate within the first 104 weeks after the accident, and section 36 barred payment of any IRBs until the Disability Certificate was submitted. In order to receive IRBs, the claimant had to be receiving IRBs prior to the 104 week mark. Since his Disability Certificate was submitted after that date, he did not meet the eligibility requirements for IRBs. Adjudicator Johal rejected the claimant’s arguments that Tomec applied to the claim and that he could not have “discovered” his claim until he stopped working more than two years after the accident. The result was compelled by the IRB eligibility requirements and was not a limitations issue.

N.F. v. Aviva Insurance Canada (18-007077)

The claimant sought entitlement to IRBs and a chronic pain assessment. In addition to denying entitlement to the claimed benefits, the insurer disputed what the weekly quantum of IRBs would be. Adjudicator Mazerolle concluded that the claimant was entitled to IRBs and the chronic pain assessment. The claimant worked as a restaurant manager and his accident-related impairments prevented him from his job demands. Adjudicator Mazerolle accepted that the quantum of IRB was to be determined based on a revised tax return (which supported IRBs of $400 per week), rather than the original tax return (which showed almost no pre-accident earnings)

W.E. v. Aviva Insurance Company (19-003285 and 19-009617)

This decision relates to two LAT files. The issues in dispute were whether the claimant’s initial LAT application should be dismissed as abandoned for the claimant’s failure to make written hearing submissions pursuant to a LAT Order, whether the claimant was entitled to ongoing IRBs, and whether the insurer was entitled to a repayment of IRBs. The hearing was heard in writing. The claimant made no submissions. Adjudicator Norris found that the claimant’s initial LAT application was dismissed as abandoned, and the insurer was entitled to a repayment of IRBs made as a result of error.

S.R. v. Traders General Insurance Company (17-004556)

The claimant was involved in a motor vehicle accident in 2014. She applied to the LAT seeking entitlement to pre- and post-104 IRBs. Adjudicator Reilly found that the claimant proved on a balance of probabilities that she sustained a substantial inability to perform her pre-accident employment as a result of the accident, and was entitled to pre-104 IRBs plus interest. The claimant did not meet the complete inability test for post-104 IRBs. Adjudicator Reilly considered evidence relating to the claimant’s various employment-related training and experience, as well as evidence indicating the claimant participated in volunteer activities and was a family caregiver in the post-104 period.

K.W. v. Aviva General Insurance (18-006969)

The claimant requested a reconsideration of the Tribunal’s decision denying various medical benefits and IRBs, seeking an order quashing the decision and ordering a rehearing on all parts of the matter. Adjudicator Watt dismissed the applicant’s request, noting that his decision set out the evidence, the law, and why he gave more weight to some arguments over others. He emphasized that a reconsideration is not an opportunity to re-argue positions that previously failed before the Tribunal or to have evidence re-weighed.

A.A.J. v. Echelon General Insurance Company (19-000961)

The claimant sought entitlement to IRBs for a one month period when he was in non-compliance with IE requests, and a treatment plan for chiropractic services. Adjudicator Boyce rejected all of the excuses provided by the claimant for his non-attendance as being unreasonable or not believable. The insurer rescheduled the IEs on multiple occasions and the claimant was provided with notices to the address on his OCF-1 and to his counsel. The treatment plan was found not reasonable and necessary based on the opinions of IE assessors.