Category: Income Replacement Benefits

M.M. v. Aviva General Insurance (19-002201)

The claimant sought entitlement to IRBs and three medical benefits. Adjudicator Chakravarti held that the claimant was not entitled to any of the claimed benefits. She found that the claimant was not credible, and that insufficient evidence was put forward to show that the claimant was working or had worked 26 of the past 52 weeks prior to the accident. The purported employer said that documents with his company name on the letterhead were misrepresentations. The claimant also failed to put forward convincing evidence regarding the three claimed medical benefits.

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.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant sought entitlement to ongoing IRBs and two medical benefits. The insurer argued that the claimant was not credible, and that her impairments were caused by other health issues and second motor vehicle accident. Adjudicator Neilson found the claimant to be a poor historian who consistently exaggerated her complaints. She concluded that the claimant did not suffer a substantial inability to engage in her pre-accident employment as a result of the accident, and that her reported impairments were caused by things and events other than the subject accident (she also did not meet the complete inability test). The claim for psychological treatment was dismissed; further chiropractic treatment was awarded based on it providing pain relief at the time it was proposed. Adjudicator Neilson also dealt with a number of preliminary motions, in which she ordered: the insurer’s witnesses would not be excluded for failure to produce the full IE file; the claimant’s treating OT and psychologist could not testify as experts, but rather as treating practitioners; that the claimant could call the adjuster as a witness; and that the claimant could refer to and rely upon psychological testing data that was served late.

R.K.K. v. Cooperators General Insurance Co. (19-002834)

The claimant sought entitlement to IRBs and a series of assessments to address the “complete inability” test, and removal from the MIG. Adjudicator Watt did not accept the opinions of the claimant’s medical experts as they relied upon the claimant’s self-reporting, which was not credible. The claimant had reported to Ontario Works that she had no restrictions on working. She was also seen on surveillance engaging in normal activities. Adjudicator Watt concluded that the claimant did not suffer from somatic symptoms disorder, and that her injuries fell within the MIG. Further IRBs were denied, as were the claimed assessments.

B.Y. v. Economical Insurance Company (19-005084)

The claimant sought entitlement to IRBs and various medical benefits. Adjudicator Watt dismissed all of the claims. He held that the claimant was able to return to work based on medical evidence and based on surveillance evidence. The claimed medical benefits were similar to treatment that the claimant said did not reduce his symptoms or increase functionality, and were therefore not reasonable and necessary. Further, the claimant did not pursue any of the treatments his family physician had recommended.

Q.N.N. v. Aviva Insurance Canada (19-003381)

The claimant sought IRBs in the amount of $400 per week and the cost of prescriptions. Adjudicator Farlam found that the claimant was not entitled to payment of IRBs because he had only submitted his 2016 T4 and failed to report his 2016 income to the CRA. The adjudicator held that it was unnecessary to decide whether the claimant suffered a substantial inability to perform his essential employment tasks because he would not have been entitled to IRBs regardless of his functional status. The claim for the cost of prescription medications was also dismissed.

A.B. v. Aviva General Insurance (19-005231)

The claimant sought ongoing IRBs in the amount of $385. The adjudicator found that the claimant was not entitled to IRBs because the claimant failed to provide evidence from the employer or himself regarding his employment (other than differing self-reports to various assessors), and failed to provide sufficient medical evidence that he suffered a substantial inability to complete his essential employment tasks. Because the claimant could not prove that he met the pre-104 week test, he was not entitled to claim post-104 week IRBs.

A.W.A. v. Certas Home and Auto Insurance (18-007207)

The claimant sought entitlement to IRBs, a series of catastrophic impairment assessments, and further physiotherapy. Adjudicator Gosio awarded IRBs up to the 104 week mark, but denied the remainder of the claims. The claimant worked as a machine operator, and his chronic neck pain inhibited his work. The claimant did not submit any evidence that he met the “complete inability” test. The proposed physiotherapy was not reasonable because it made the claimant’s pain worse. Finally, there was no reasonable basis on which to award the catastrophic impairment assessments. The evidence of psychological impairment was minimal, and he did not meet the criteria for any psychological disorder.

D.M. v. Aviva Insurance Company (17-006525)

This is a re-hearing decision heard in writing after the insurer made a request for reconsideration on the basis that the LAT made significant errors of fact and law in the initial hearing decision. The issue was whether post-accident money received by the claimant was a gift or income that was deductible from IRB payments. The claimant submitted that she continued to receive her regular pay from her mother’s restaurant after the accident, despite not working in the restaurant, as a way for her mother to help her financially, and that the money was a gift. The insured submitted that the amount was employment income as the claimant declared the income on her income tax returns and deductions were made for income tax, EI, and CPP contributions. In the initial hearing, Adjudicator Johal found that the money received by the claimant was a gift and not deductible. After the re-hearing, Adjudicator Johal found that the claimant did not have to be actively engaged in work, or “doing work in exchange for money”, in order to be considered to be receiving income as a result of employment. The insurer was entitled to deduct 70% of the post-accident income from IRB payments.

M.A. v. Unifund Assurance Company (19-000209)

The claimant applied to the LAT seeking entitlement to pre- and post-104 IRBs, psychological treatment, and physiotherapy treatment. Adjudicator Go found that the claimant was entitled to pre-104 IRBs only. Adjudicator Go noted that although the claimant was taking anti-depression medication, she had failed to complete all her sessions with a social worker, she had not attended psychological treatment since 2016, and references to increased anxiety in the family doctor’s records were unrelated to the accident.