Category: Income Replacement Benefits

Rawal v. Economical Insurance (21-007975)

The claimant sought entitlement to IRBs, medical/rehabilitation benefits, a psychological assessment, and the cost of an accountant’s report. The respondent denied the claims for medical and rehabilitation benefits because it determined that the claimant’s injuries fell within the MIG. Adjudicator Neilson accepted that the claimant sustained a psychological impairment as a result of the accident that removed him from the MIG. He was therefore entitled to the medical/rehabilitation benefits and psychological assessment sought. With respect to IRBs, Adjudicator Neilson held that the claimant was entitled to IRBs from February 8, 2021 (date of submission of OCF-3) to March 3, 2021 (date of return to work). The claimant was not entitled to IRBs before the OCF-3 was submitted to the respondent on February 8, 2021. Adjudicator Neilson emphasized that the date on which the OCF-3 was prepared was not a consideration. She went on to note that those consequences did not apply prior to submission of an OCF-10 election form, as the SABS do not state that a specified benefit is not payable for any period before the OCF-10 is submitted (unless the OCF-10 was requested under section 33 of the SABS, it was not submitted on time, and the claimant had no reasonable excuse for delay). She also noted that there was no requirement in the SABS for an insurer to mention section 33 when making a request for information or to advise an insured person of the consequences for failing to comply with a section 33 request. The claimant was entitled to the cost of an accountant’s report under section 7(4) of the SABS because his IRB entitlement was not a straightforward simple calculation as he was self-employed at the time of the accident. Accordingly, an accounting report calculating the claimant’s base amount for the purpose of calculating IRBs was necessary.

Soldatovas v. Wawanesa Mutual Insurance Company (2023 ONSC 3440)

The claimant appealed the Tribunal’s denial of IRBs and a special award, arguing that the decision lacked procedural fairness, reasonableness, and did not consider key evidence. The Court dismissed the appeal, holding that the Tribunal provided the claimant with an opportunity to present his case, and holding that the Tribunal was not required to cite every document submitted by the claimant in its reasons.

Kathirgamanathan v. Aviva Insurance Company (20-011425)

The claimant applied to the LAT seeking entitlement to IRBs, physiotherapy, and interest on overdue payments. Adjudicator John found that the insurer was not liable to pay IRBs during the period in which the claimant was non-compliant with s. 33 requests for an OCF-2 and other reasonably required employment/income-related documents. Adjudicator John also found the claimant was not entitled to IRBs as he did not show, at the time of the OCF-3 dated February 14, 2018, that he was substantially unable to perform the essential tasks of his pre-accident job because of accident-related impairments. Adjudicator John concluded that there was no evidence provided by the claimant as to what his essential job tasks were and how his impairments from the accident prevented him from performing those essential tasks. Additionally, the report of the claimant’s social worker did not provide any insight into the claimant’s pre-accident job and current limitations. Adjudicator John found that the claim for physiotherapy was statute-barred by the limitation period prescribed by s. 56 of the Schedule.

Coban v. Allstate Insurance (21-012430)

The claimant was catastrophically impaired in a motor vehicle accident in October 2018. At the time of the accident, the claimant was participating in a Work Transition Program through the WSIB. The Work Transition Program included attending an educational programme and working for a company through a work placement programme. During his participation in the programme, the claimant received remuneration from the WSIB. The claimant sought IRBs after the accident. The insurer denied IRBs on the basis that the claimant was not “employed” due to the fact that his placement was part of a vocational rehabilitation program arranged through the WSIB, and he was in receipt of disability benefits rather than “employment income” at the time of the accident. Adjudicator Demarce found that the claimant was employed at the time of the accident, stating: “I am persuaded that the applicant entered into an employer/employee relationship in that he was required to perform the duties of the job that he was hired to do.” In addition, Adjudicator Demarce was persuaded that the remuneration from the WSIB was remuneration for employment.

Al-Basheky v. Co-operators General Insurance Company (20-008231)

The claimant commenced an application after he was involved in a motor vehicle accident on November 9, 2018. He claimed entitlement to IRBs, which the insurer denied on the basis that he did not produce an OCF-3 within 104 weeks of the accident. Vice-Chair Todd found that the claimant was barred from proceeding with his claim for IRBs as he failed to comply with the timelines prescribed by the Schedule for the submission of an OCF-3. The claimant’s IRB application was dismissed. Vice-Chair Todd emphasized that the claimant sent the OCF-3 as just one of seven PDFs in an email to the insurer’s legal representation and the Tribunal for a case conference, 15 months after the IRB claim was first made and long after it was made apparent by the insurer that the missing OCF-3 was a major issue. Vice-Chair Todd concluded that the OCF-3 was never properly submitted to the insurer.

Achaia-Shiwram v. Intact Insurance Company (20-004699)

The claimant applied to the LAT disputing her entitlement to IRBs and CAT impairment. The respondent raised a preliminary issue that the claimant did not dispute IRB entitlement within 2 years pursuant to s. 56. At the beginning of the in-person hearing, the claimant attempted to summons two witnesses, the claims adjuster and the CAT OT IE assessor. The respondent objected to these witnesses as the claimant had not provided their names on the witness list provided to the respondent and because the claimant had not properly served a summons to witness on either the claims adjuster or the CAT OT IE assessor. Adjudicator Hines agreed with the respondent noting that the potential witnesses were not served with a summons despite the claimant having ample time to do so. Adjudicator Hines also noted that because the claimant did not include them on their witness list, the respondent would be prejudiced by adding them as witnesses on the eve of the hearing, as the respondent would not have had time to prepare for examinations. The claimant also brought a motion to exclude an IE report based on the hourly rate charged by the IE doctor. The IE doctor confirmed her hourly rate was $225 hour and charged $3,375 for the IE assessment. However, the respondent provided an OCF-21 invoice that confirmed it paid the IE assessor $2,000 as per s. 25 of the SABS. Adjudicator Hines allowed the IE report as evidence. As for the substantial issues, Adjudicator Hines preferred the evidence of the IE assessors with respect to CAT and noted that causation was a major factor. With respect to causation, Adjudicator Hines noted that the claimant argued that the accident caused a decline in her employment performance; however, her failure to submit post-accident employment records to this effect weakened her argument. Adjudicator Hines also pointed to an intervening event of a volleyball injury, which caused further deterioration in the claimant’s condition and ability to work. Adjudicator Hines found that the claimant did not meet her onus of proving that but for the accident she would not have sustained the psychological impairment which formed the basis of her CAT application and IRB claim. As Adjudicator Hines concluded that the claimant did not meet the IRBs disability test, she did not rule on the s. 56 limitation period argument.

Kumar v. Aviva Insurance Company (21-002087)

The claimant applied to the LAT for entitlement to post-104 week IRBs. Prior to the accident, the claimant was employed as a manual labourer and had prior experience working as a retail salesclerk. The claimant argued that he was entitled to post-104 week IRBs based on his various accident-related physical and psychological impairments, including a compression fracture of the T11 vertebra. The insurer argued that other than alleging injuries sustained as a result of the accident, the claimant failed to describe the extent to which he suffers a complete inability to pursue any employment for which he is reasonably suited by education, training or experience. Adjudicator Roswell held that where a claimant’s submissions concerning alleged accident-related impairments fail to address the nexus to the alleged inability to partake in any employment they may reasonably be suited for, a claimant will not be entitled to IRBs. Given that the claimant’s submissions regarding his alleged impairments were made in a vacuum and were not found to interfere with his ability to work post-accident, Adjudicator Roswell dismissed the application.

Amadiegwu v. Aviva General Insurance Company (2023 ONSC 1256)

The claimant appealed the Tribunal’s decision dismissing her claim for IRBs. The Court dismissed the appeal holding that there was no extricable question of law. The Court also rejected the arguments that the Tribunal process lacked procedural fairness or that the Tribunal did not apply the correct test for causation.

Sookbir v. Wawanesa Insurance (20-008613)

The insurer and the claimant disputed at a preliminary issue hearing whether the claimant’s IRB claim ought to be barred for a failure to submit a completed OCF-3 to the insurer. The claimant submitted an OCF-3 form which indicated that she was not working in the 26 weeks before the accident and that she did not suffer a substantial inability to complete her pre-accident work duties. Adjudicator Kepman acknowledged that the claimant’s OCF-3 was confusing and contradictory. However, she found that the insurer had had a duty to seek clarification regarding the inconsistencies in the claimant’s OCF-3 but had failed to do so. Adjudicator Kepman held that the claimant’s OCF-3 was complete and that the claimant could proceed with her claim for IRBs before the LAT.

Aized v. The Co-operators (20-012300)

The claimant applied to the LAT for post-104 week IRBs and medical benefits, including physiotherapy services and an attendant care assessment. Prior to the accident, the claimant was employed as a student placement coordinator, which required concentration, critical thinking skills and sitting in front of a computer screen for prolonged periods of time. Despite returning to work with reduced hours and the ability to work remotely, the claimant argued that she was unable to perform the essential responsibilities of her job and that working full-time exacerbated her pain. The insurer argued that the claimant was substantially able to perform the tasks of her pre-accident employment with modified duties and, therefore, she did not suffer from a complete inability to engage in any employment for which she was reasonably suited. Having regard to the deterioration in the claimant’s psychological condition and the pain caused by the accident, Vice-Chair Logan found that, although the claimant was substantially unable to perform the essential tasks of her pre-accident employment, she was still capable of engaging in alternative employment for which she was reasonably suited. Vice-Chair Logan held that a claimant’s ability to perform “some, albeit not all” of the responsibilities of their pre-accident employment strongly indicates that they are able to continue to engage in their pre-accident employment and in alternate forms of employment that they may be reasonably equipped for. As a result, the claimant was only entitled to pre-104 week IRBs. Vice-Chair Logan concluded that the claimant had no objective quantifiable physical impairments from the accident and refrained from seeking out physiotherapy earlier upon being advised by her physician. In addition, Vice-Chair Logan held that an attendant care assessment was not reasonable or necessary given that the claimant did not suffer from any residual physical impairments and could not draw upon her treatment plan as evidence that attests to the need for an attendant care assessment. As a result, the claimant was not entitled to medical benefits.

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles

Powered by Crow & Pitcher

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com