Category: Income Replacement Benefits

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.

K.P. v. CUMIS General Insurance (18-001556)

The claimant applied to the LAT seeking entitlement to pre- and post-104 IRBs, psychological treatment, and physical treatment. Adjudicator Letourneau found that, due chiefly to the pain management needs of the claimant and the diagnoses presented by treating practitioners, the claimant was entitled to the medical benefits in dispute. The claimant was not entitled to IRBs .

M.I. v. Coseco Insurance Company (18-000742)

The insurer suspended the claimant’s entitlement to IRBs. The claimant applied to the LAT. Before the Case Conference, the insurer reinstated the IRBs. The insurer argued that the LAT did not have jurisdiction to consider the claim for IRBs. Adjudicator Kepman concluded that the Tribunal did not have jurisdiction under the Insurance Act to consider the claim, since all IRBs plus interest had been paid to the claimant. However, she did consider the claim for a special award, and concluded that the insurer had not acted unreasonably in its adjusting of the claim.

Z.X.C. v Belair Insurance Company (19-000314)

The claimant disputed her MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Shapiro concluded that based on the medical evidence, the claimant suffered predominantly minor physical injuries – strains and sprains – as a result of the accident, and her injuries thus fell within the MIG. Adjudicator Shapiro also determined that the claimant was not entitled to IRBs as she had not proven the rate of the benefit, nor had she proven her basic entitlement to IRBs after March 24, 2017. While the claimant submitted that she provided ample documentation to calculate the rate of IRBs, Adjudicator Shapiro found that the claimant’s records conflict as to what her employment earnings were, and when she earned it, and that her hearing testimony lacked credibility to fill in the gaps. He also felt that the claimant sustained minor strains and sprains, as above, which did not cause her a substantial inability to perform her pre-accident position in any event.

R.E. v Aviva Insurance Company (19-000303)

The claimant disputed his MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Boyce concluded that the claimant sustained predominantly minor injuries as defined by the SABS that were properly treated within the MIG, noting that the medical evidence relied upon was “incredibly underwhelming”. Adjudicator Boyce further concluded that the claimant was not entitled to IRBs, as he had not demonstrated a substantial inability to perform the essential tasks of his pre-accident employment and had not furnished evidence that his income qualifies under section 4(5) of the SABS. The claimant made no reference to any medical evidence confirming that he was incapable of performing the essential tasks of his pre-accident work, aside from the insurer’s IE reports, which were unhelpful to him as they determined that he did not meet the IRB test. More problematically, the claimant did not produce any financial documentation or even identify for the Tribunal what his pre-accident employment constituted, how many hours he worked per week, or what his tasks were.

D.K. v Aviva Insurance Company (18-008371)

The claimant disputed her entitlement to IRBs. The parties agreed that the claimant was unable to work and was entitled to an IRB, but disagreed as to the quantum the claimant was entitled to. The claimant did not provide any written submissions for the hearing other than an email to the Tribunal with the accountant’s report she was relying on it support of her IRB quantum claim. Despite not having received any submissions, based on his review of the evidentiary materials, Adjudicator Johal found that the claimant had not proven that she was entitled to an IRB in the amounts claimed in her accounting report. He placed more weight on the insurer’s IRB report, as it relied on the T2 Corporate Income Tax Return for the claimant’s business for the last completed taxation year, in accordance with SABS.

S.P. v Aviva General Insurance Company (18-008876)

The claimant disputed her MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Helt found that the clamant did not suffer from chronic pain so as to remove her from the MIG, noting that the medical records failed to establish that she claimant complained of persistent chronic pain issues causing functional impairment or disability over the course of several appointments. Adjudicator Helt further found that the claimant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident, given that the claimant returned to work immediately after the accident for a period of five weeks and provided conflicting statements and information to doctors regarding her post-accident level of functioning (contradicted by way of surveillance evidence) and her work status.

T.S. v Aviva Insurance Canada (18-002858)

The claimant sought entitlement to IRBs which had been terminated, a special award, costs, and interest. The claimant argued that the insurer did not take into account all of his pre-accident employment in calculating his weekly IRB, and that the insurer failed to respond to his IRB application within 10 days and therefore should be required to pay IRBs at the full amount for the period in dispute. Adjudicator Boyce relied on s. 4(5) of the Schedule and agreed with the insurer, that because the claimant did not report income from either self-employment or from working at a car dealership, his income for the purposes of IRB calculations should be determined without reference to any income he failed to report under the Income Tax Act. He further found that although the insurer failed to respond to the IRB application within 10 days of receipt, it had cured its s. 36 breach by remitting payment in full for the IRB for the period in dispute with interest. Adjudicator Boyce therefore found the claimant was not entitled to further IRBs, nor was he entitled to costs, an award, or interest.