Category: Income Replacement Benefits

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.

C.Z. v Security National Insurance Company (18-012296)

The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to a psychological assessment. Adjudicator Johal concluded that the claimant was not entitled to either IRBs or removal from the MIG. The claimant failed to provided any evidence to support his submissions that he suffers a substantial inability to perform the essential tasks of his employment, and had chosen to pursue a degree in University in the Fall of 2016.

M.D. v. Aviva General Insurance (18-006666)

The claimant sought entitlement to two treatment plans, the costs of two examinations, and a special award, as well as a determination as to the quantum of an approved income replacement benefit. Adjudicator Boyce accepted the claimant’s submission that she was entitled to an IRB in the amount of $297.88 per week, finding the calculation in the insurer’s report was incorrect. The difference being use of a 52 week period, or a 365 day period; 52 weeks was held to be the correct time period. Adjudicator Boyce also found the claimant entitled to the cost of a hydrotherapy treatment plan and outstanding transportation costs. He found that the treatment plan for physiotherapy was not reasonable and necessary, noting the opinion of Dr. Josefchak, that the claimant likely achieved maximal medical improvement from facility-based treatment. He also found the claimant was not entitled to a special award.

M.A. v Aviva General Insurance Company (18-011678)

The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to various medical benefits. Adjudicator Grant found that the claimant’s injuries were predominately minor in nature and there was no evidence before the Tribunal to support the claimant’s submission that his psychological impairments remove him from the MIG. Adjudicator Grant also noted that the claimant had not satisfied at least three of the criteria set out by the American Medical Association Guidelines, so the claimant could not be found to suffer from chronic pain. In terms of entitlement to IRBs, Adjudicator Grant found that claimant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.