Category: Income Replacement Benefits

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.

Y.L.C. v. Gore Mutual Insurance Company (18-010499)

The claimant disputed his entitlement to chiropractic treatment and income replacement benefits. The insurer denied the proposed chiropractic treatment based on a physiatry IE report which found that further facility-based treatment would not be helpful. Vice Chair Lester nevertheless determined that the disputed treatment plan was reasonable and necessary, given the records from the treating facility which showed ongoing improvements in the claimant’s range of motion and the fact that the claimant’s family physician had recently referred him to a chronic pain clinic for the same types of issues he complained of to the physiatry assessor. Vice Chair Lester concluded that she did not have jurisdiction to deal with the merits of the IRB claim, as the insurer had not denied entitlement to IRBs but rather suspended entitlement for failure to comply with a section 33 request for production of financial documentation.

K.W. v. Aviva Insurance Company (18-006959)

The claimant applied to the LAT seeking entitlement to IRBs, the benefits proposed in two treatment plans, and a special award. The insurer conceded that the claimant qualified for IRBs during the disputed period but contested the quantum of IRBs being claimed. Adjudicator Watt held that post-accident “passive” income earned by a claimant was to be included as a deduction in any calculation under s. 4 and 7 of the SABS, and found that the self-employed claimant was entitled to IRBs in the amount calculated by the insurer’s expert accountant. The claimant was not entitled to a psychological assessment, psychological treatment, or a special award. The psychological assessment was not reasonable and necessary as the claimant had already undergone two assessments. Adjudicator Watt found that the services proposed in the OCF-18 for psychological treatment were not reasonable and necessary, including costs for consultation, communication with the treatment providers, periodic administration, scoring and interpretation of psychological tests, review of external file materials and preparation of status reports and overseeing supervision of another psychologist.

P.V. v. Economical Insurance (19-000069)

The claimant sought reconsideration of the Tribunal’s decision that the limitation period applied to his IRB claim. The claimant had continued to work for over three years after the accident, and the insurer had denied entitlement to IRBs during that period because he did not meet the “substantial inability” test. Adjudicator Boyce granted the reconsideration based on the Court of Appeal’s decision in Tomec v. Economical. He held that the claimant could not discover his potential entitlement to IRBs until he stopped working almost four years after the accident. Because he could not discover his impairment until then, the denial of IRBs prior to the work stoppage was deemed invalid and did not start the clock of the limitation period.

J.V.M v. Aviva General Insurance Company (18-009606)

A preliminary issues hearing was held to determine whether the insurer was barred from claiming a repayment of IRBs. The claimant argued that the insurer’s request was made outside of the 12 month period permitted by section 52. Adjudicator Grant held that the insurer was not barred from claiming a repayment of IRBs, as the claimant received an overpayment of IRBs during a period in which she was employed and the insurer provided repayment notice pursuant to s. 52 of the SABS. He noted that the 12 month period was not with reference to the first payment of IRBs, but rather the entire period over which the repayment is claimed. A case conference was ordered to address the issue of repayment of IRBs and the substantive issues in dispute.

K.A. v. Unica Insurance (18-011192)

The claimant sought entitlement to IRBs. The insurer argued that the claimant did not meet any of the criteria for initial entitlement to IRBs. Adjudicator Punyarthi agreed with the insurer, holding that the documentary evidence showed that the claimant was not employed at the time of the accident, was not receiving employment insurance at the time of the accident, and had not worked a minimum of 26 weeks in the 52 weeks preceding the accident.

J.H. v. CUMIS General Insurance Company (18-012367)

The claimant sought a determination that she suffered a catastrophic impairment, entitlement to IRBs, and entitlement to various medical benefits. Adjudicator Gosio held that the claimant did not meet the criteria to suffer a catastrophic impairment. He agreed that the claimant suffered a psychological impairment, but that the maximum impairment was a Class 3 moderate impairment in each of the spheres of function. The claimant continued to care for her young child, was independent with personal care, and was able to exercise independently. She visited with family and friends on occasion. The claimant appeared well-groomed and there was no evidence of self-neglect. Adjudicator Gosio did award IRBs on an ongoing basis, holding that the claimant’s anxiety prevented her from returning to work. The claims for physical therapy were rejected, as the claimant was capable of independently exercising; the HST on an approved treatment plan was awarded.

T.A.K. v. Aviva General Insurance Company (18-008232)

The claimant sought entitlement to IRBs, ACBs, and a special award. The claim for IRBs only concerned the weekly quantum. Adjudicator Neilson held that the insurer was entitled to deduct CPP Disability Benefits, and entitled to deduct income reported on the claimant’s tax returns which the claimant could not provide documentation for. She was critical of the claimant’s lack of disclosure of his income, particularly given that he had filed his taxes after the date of loss. After the claimant turned 65, even though an IRB was not actively being paid, the insurer was entitled to reduce the weekly IRB in accordance with the SABS. Adjudicator Neilson held that the formula applied whether an IRB was being paid, or was later found to be payable. She issued a special award of 35 percent based on the insurer’s improper deduction of 100 percent of post-accident income rather than 70 percent. Adjudicator Neilson dismissed the claims for ACBs, holding that many of the claimant’s reported care needs arose from conditions unrelated to the accident (such as a strokes and post-accident falls). She was critical of the claimant’s assessors and treatment providers for not addressing causation.

J.P. v. Allstate Insurance Company (18-008027)

The claimant sought entitlement to IRBs and eight medical benefits. Adjudicator Boyce rejected the claims. He held that the claimant failed to adduce sufficient objective evidence of a substantial inability to engage in his pre-accident employment. All of his evidence was self-reported. Further, the claimant did not use any prescriptions to address his soft tissue injuries or pain. Adjudicator Boyce also rejected all of the claimed medical benefits. First, he noted that section 38(5) prevented the claimant from disputing entitlement to any OCF-18s while treatment remained under the MIG. With regard to two late denials, Adjudicator Boyce noted that any incurred treatment would be payable, but that the claimant failed to provide evidence that any treatment was incurred during the period of non-compliance.

S.G. v. Wawanesa Mutual Insurance Company (18-001861)

The claimant sought reconsideration of the Tribunal’s denial of IRBs and the cost of an accounting report. Adjudicator Parish concluded that the Tribunal had not made a significant error or law or fact such that it likely would have reached a different conclusion. Most of the arguments made by the claimant were, in essence, an effort to re-argue the case.