Category: Income Replacement Benefits

G.K. v Coseco Insurance (18-007434)

The claimant disputed her MIG determination and sought entitlement to various medical/rehabilitation benefits and income replacement benefits. Adjudicator Hans concluded that the claimant’s injuries did not fall within the MIG, as the medical evidence established that she suffered from chronic pain syndrome that was not merely a sequelae of the soft tissue injuries sustained in the accident, and which caused functional limitations and impacted the claimant’s activities of daily living. Adjudicator Hans further concluded that the claimant met the eligibility test for income replacement benefits. He noted that the claimant provided convincing evidence regarding how her impairments specifically affected her functionality and her ability to perform the essential tasks of her employment, while the insurer’s IE assessor did not undertake a sufficient analysis of the essential tasks of her employment before coming to a conclusion.

M.S. v. Unifund Assurance Company (18-000715)

The claimant applied to the LAT for IRBs. The insurer approved entitlement eight days before the hearing. The claimant sought an order from the Tribunal that she was entitled to ongoing IRBs; the insurer argued that because there was no longer a dispute, the Tribunal did not have jurisdiction. Adjudicator Gosio held that once the insurer agreed to pay IRBs, the Tribunal lost jurisdiction to adjudicate the issue, and that sections 280 and 281 did not permit the Tribunal to make an order once a dispute had been resolved.

A.J. v The Guarantee Company of North America (19-001321)

The claimant sought entitlement to income replacement benefits and physiotherapy treatment, while the insurer sought a repayment of IRBs which it claimed were wrongly paid to the claimant at the outset of the claim. The insurer relied on an orthopaedic IE report to justify its termination of IRBs. Adjudicator Grant placed little weight on the report, noting that it was flawed in that it did not comment on any testing that would have reflected the claimant’s workload demands, which were described as including operating heavy machinery and heavy lifting duties. Adjudicator Grant accepted the claimant’s evidence that she had attempted to return to both her full-time and part-time pre-accident employment, but had not been able to do so, and found that she was entitled to pre-104 week IRBs. However, he went on to find that she had not provided evidence to support that she met the more stringent post-104 week entitlement test. Adjudicator Grant also held that the claimant was liable to repay the IRBs as requested by the insurer for amounts paid while the claimant was being paid income for modified work, as the repayment request was sent within the required time period and clearly set out the amount to be repaid. Finally, Adjudicator Grant concluded that the claimant was entitled to the physiotherapy treatment plan, as her pain reports were consistent, credible, and ongoing since the accident, and the evidence supported that treatment had proven beneficial.

S.K. v. Aviva Insurance Canada (19-003326)

The claimant sought entitlement to IRBs, removal from the MIG, and three treatment plans for chiropractic therapy. Adjudicator Conway concluded that the claimant suffered soft tissue injuries, which fell within the MIG. She also denied the claim for IRBs due to insufficient evidence regarding the claimant’s inabilities.

K.D. v. Aviva Insurance Company (18-011646)

The claimant applied to the LAT seeking entitlement to IRBs. The issue in dispute was the calculation of the quantum of the weekly IRB. Vice Chair Farlam found that the claimant was self-employed at the time of the accident, and his gross self-employment income must be calculated according to the income declared in the last completed taxation year before the accident, pursuant to s. 4(3) of the SABS. Vice Chair Farlam found that the expert accounting reports incorrectly calculated the IRB quantum based on the claimant’s income for the previous 52 weeks before the accident. As the claimant did not declare any income in the last completed taxation year before the accident, his weekly IRB quantum was determined to be zero. Vice Chair Farlam rejected the claimant’s submissions that to apply s. 4(3) would create an unjust result, an “unintentional blind spot,” and possibly other perceived unfairness to the claimant. He held that s. 4(3) of the Schedule is clear and unambiguous.

Sonnet Insurance Company v. L.O. (19-004559)

The insurer sought repayment of income replacement benefits because of error, wilful misrepresentation or fraud, and interest. Adjudicator Conway held that the insurer was entitled to repayment of IRBs plus interest. The insurer made IRB payments based on the representations of the claimant. The documents submitted to the insurer by the claimant stating that he was employed were false. Adequate notice was given to the claimant to repay the IRBs and there was evidence that the insurer delivered its notice at the address provided by the claimant. Notice for repayment was given in a timely manner to the claimant and as stipulated by the SABS.

C.A. v. Aviva Insurance Canada (18-005878)

The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to IRBs beyond the 104 week mark. Adjudicator Lake dismissed the reconsideration. The claimant’s arguments were primarily an attempt to have the Tribunal re-weigh the evidence and expert opinions in a more favourable light. This did not constitute an error in law.

C.A. v. Aviva Insurance Canada (18-005878)

The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to IRBs beyond the 104 week mark. Adjudicator Lake dismissed the reconsideration. The claimant’s arguments were primarily an attempt to have the Tribunal re-weigh the evidence and expert opinions in a more favourable light. This did not constitute an error in law.

F.E. v. Intact Insurance Company (18-011405)

The claimant sought entitlement to IRBs, various medical benefits, and two assessments. The insurer brought motions for section 33 non-compliance for failure to provide records in the Case Conference Order, and a section 55 defence for IE non-attendance. Both motions were dismissed. Section 33 was not found to apply because the claimant’s breach was of the LAT Rules as opposed to a section 33 request. The section 55 defence was dismissed because of the insurer’s failure to provide notice of the issue. Adjudicator Paluch concluded that the claimant was not entitled to IRBs because he failed to provide evidence necessary to establish either a substantial or complete inability to perform the essential tasks of his employment, and there was evidence that he returned to work following the accident. The medical benefits and assessments were also dismissed due to the claimant’s lack of evidence and poor credibility.

M.M. v. Aviva Insurance Canada (17-006475)

The claimant sought entitlement to IRBs, various medical benefits, educational expenses, and an accounting report. Adjudicator Boyce found that the claimant was not entitled to payment of IRBs as claimed as she did not demonstrate a substantial inability to perform the essential tasks of her pre-accident employment for the period in dispute. Adjudicator Boyce had noted inconsistencies in the claimant’s IRB claim about her ability to complete her essential pre-accident employment tasks and that the claimant was able to return to work. The surveillance evidence was found to show the claimant doing many routine work tasks that contradicted her claim she was unable to work. She also claimed the cost of the accounting report she completed to calculate her IRB quantum, which was determined to be not payable because it was not an identified issue in dispute. The claimant was found to be entitled to payment for physiotherapy treatment and dental expenses including interest as they were considered to be reasonable and necessary. Further, the claimant was not entitled to the education expenses claimed as there was no evidence to support that she was unable to complete her course as a result of the accident. No special award was granted as there was no indication that Aviva unreasonably withheld or delayed payment of benefits where there was also a genuine dispute over entitlement.