Category: Income Replacement Benefits

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.

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.