Category: Income Replacement Benefits

F.A. v. Wawanesa Mutual Insurance Company (18-008453)

The claimant sought entitlement to IRBs. The insurer argued that the claimant failed to provide relevant records requested under section 33, including pre-accident income documentation, employment file, and post-accident income records. The insurer also argued that the claimant’s revocation of the right to conduct a paper IE was non-compliance with IE attendance. Adjudicator Chakravarti concluded that most of the insurer’s documentation requests were reasonable and that the claimant’s entitlement to IRBs was suspended in accordance with section 33. She also held that the claimant failed to participate in an IE by revoking consent for assessors to conduct a paper IE.

A.T. v. Aviva Insurance Canada (18-008856)

The claimant sought reconsideration of the Tribunal’s denial of post-104 week IRBs. Adjudicator Go dismissed the reconsideration request. The claimant used the wrong test in arguing for entitlement to IRBs. Further, Adjudicator Go noted that the claimant’s own family physician did not support that she suffered a complete inability to engage in any suitable employment.

S.L. v. Aviva Insurance Company of Canada (19-002783)

The claimant sought entitlement to income replacement benefits and to medical benefits proposed in eight treatment plans, and the cost of $26,400 for catastrophic impairment assessments. The claimant argued that he suffered from pre-existing lower back pain which was exacerbated as a result of the accident and would prevent him from reaching maximum recovery under the MIG. Adjudicator Lester found that the claimant’s pre-existing strains did not remove him from the MIG and the claimant did not have a chronic pain disorder, therefore, the MIG limits applied. Adjudicator Lester concluded that the claimant exhausted all funding under the MIG and he was not entitled to any of the treatment plans in dispute. Adjudicator Lester found that the claimant suffered a substantial inability to perform the essential tasks of his employment and was entitled to IRB for a period of four months. Adjudicator Lester noted that the claimant was also entitled to interest for the IRB.

S.L. v. Aviva Insurance Company (19-00278)

The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to medical benefits proposed in eight treatment plans. Adjudicator Lester found that the claimant’s injuries fell with the MIG and that none of the treatment plans in dispute were payable as the MIG limits had been exhausted. However, the claimant was deemed entitled to IRBs up to when he returned to work, with interest. The claimant argued that he was suffered from a chronic pain disorder. However, the adjudicator noted that the claimant did not prove that he was experiencing a “significant and reliable impairment of functional status or that he showed a severe debilitating condition of ongoing pain”. With that said, Adjudicator Lester noted that on the balance of probabilities, it was reasonable to conclude that someone who was diagnosed with strains and sprains would need some time off from a very heavy physically demanding job in order to heal the injuries.

S.P. v. Jevco (19-001613)

The claimant sought entitlement to income replacement benefits, to the costs of four assessments for examinations, to four treatment plans for physiotherapy services, and to payment for a disability certificate invoice. Adjudicator Watt found that the claimant was not entitled to the medical benefits, attendant care assessment, psychological assessment, functional abilities evaluation, and chronic pain assessment. In determining entitlement to IRB, Adjudicator Watt relied on the opinions of the IE assessors who indicated that the claimant could perform her pre-accident duties. Adjudicator Watt concluded that there was no evidence before the Tribunal to show that the claimant’s pain was severe enough to cause functional impairment or disability, so the IRB claim was dismissed. Finally, Adjudicator Watt found that the disability certificate invoice was not reasonable and necessary.

S.S. v. Unifund Assurance Company (18-010682)

The claimant sought a determination that her impairments were outside of the MIG, entitlement to medical benefits proposed in two physiotherapy treatment plans that had been partially approved, entitlement to IRBs which had been suspended for non-attendance of IEs, and a special award. Adjudicator Lester rejected the claims. She agreed with the insurer that the claimant’s injuries from a previous car accident had resolved prior to the subject accident and that the claimant had not exacerbated a previous condition to warrant removal from the MIG. Adjudicator Lester also found that the insurer’s notices of the IEs were compliant with the Schedule, and the claimant’s non-attendance of IEs disentitled her to IRBs.

Applicant v. Northbridge Personal Insurance Company (18-000729)

The claimant sought entitlement to income replacement benefits, while the insurer sought a repayment of $59,817.21 in IRBs paid from October 2011 to August 2017 on the basis of wilful misrepresentation. Vice-Chair Marzinotto dismissed the claimant’s application and found that the insurer was entitlement to repayment of IRBs paid to date. The Vice-Chair was satisfied on the evidence before her that the claimant misrepresented his employment status, misrepresented his income, and submitted manufactured pay slips after the accident in support of his application for accident benefits.

C.P. v. Certas Home and Auto Insurance Company(17-003172)

The claimant filed a request for reconsideration arising from a decision in which the Tribunal found that that he was not entitled to income replacement benefits. Vice-Chair Marzinotto dismissed the request for reconsideration, finding no error or misapprehension of evidence in the Tribunal’s decision.

T.C. v. TD General Insurance Canada (19-000267)

The claimant sought entitlement to income replacement benefits. The insurer argued that the claimant had not produced any pre-accident or post-accident medical records, and thus, had not produced sufficient medical evidence to meet the IRB test. The insurer also relied on its section 44 IE reports, which opined that the claimant could return to work. Vice-Chair Lester agreed with the insurer, and found that absent medical documentation to support the claimant’s testimony that he suffered a substantial inability to perform the essential tasks of his employment, she did not have enough evidence to find on a balance of probabilities that he met entitlement to the benefit.

B.B. vs. Aviva General Insurance Company 18-006826)

The claimant disputed entitlement to IRBs in the amount of $400.00 per week from October 26, 2016 to January 7, 2019 with interest. As a preliminary issue, the claimant sought to add entitlement to IRBs beyond January 7, 2019. Adjudicator Lake dismissed the claim, and the preliminary issue. She noted that the claimant did not bring the preliminary matter up during the Case Conference, and had sufficient time before the hearing to bring the matter up and submit a motion to include the issue, which would have allowed the insurer to respond. As it was highly prejudicial to significantly change the period of the benefit claimed, and an Order from the Tribunal was required to add issues to a hearing, the preliminary issue was dismissed. Adjudicator Lake dismissed the claimant’s claim for IRBs, noting that although an OCF-3 was completed on October 31, 2016, it was not provided to the insurer until April 9, 2018; therefore, there was no entitlement to IRBs prior to April 9, 2018. Furthermore, the claimant had failed to prove on a balance of probabilities that he was entitled to the benefit. The practitioners who completed his OCF-3s did not have direct knowledge of his job requirements, and instead used generic terms; the description of his employment was vague and generic when described by medical practitioners, and sick notes provided did not directly reference the subject accident.

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