Category: Income Replacement Benefits

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.

F.M. v. Aviva Insurance Canada (18-008127)

The claimant sought entitlement to post-104 week IRBs. Adjudicator Létourneau concluded that the claimant did not meet the complete inability test and denied the claim. The claimant’s background and education qualified him for manual labour type positions, but not customer-service type jobs due to lack of English language skills. The adjudicator concluded that the claimant had sufficient physical abilities to work in light to medium work. The surveillance of the claimant also showed him engaging in activities that the supported the IE assessors’ conclusions.

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.

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.

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.

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.