Category: Income Replacement Benefits

Aviva General Insurance Company v. N.G. (18-005588)

The insurer sought repayment of IRBs of $2,400 on the basis that the claimant had wilfully misrepresented his address at the time his policy was renewed, invalidating the policy. Adjudicator Norris held that the insurer failed to prove that the claimant had wilfully misrepresented his address. The insurer did not put before the Tribunal any investigation report or affidavit to support same. The submissions of the insurer were not evidence, and did not prove that the claimant had moved before renewing his policy.

M.F. v. Belair Insurance (18-003847)

The claimant sought entitlement to post-104 week IRBs and various medical benefits. In terms of post-104 IRBs, Adjudicator Grieves concluded that the claimant did not suffer a complete inability to engage in any employment for which he was reasonably suited. In doing so, the adjudicator noted that the claimant had only applied for IRBs a few days prior to the 104 week mark, and found that the claimant’s previous job as a delivery driver was still a viable occupation as he had worked in that capacity post-accident. Adjudicator Grieves also concluded that none of the disputed treatment plans were payable. The claimant was independent in self-care and had returned to work and school since the accident. As such, an in-home occupational therapy assessment and occupational therapy services were not reasonable and necessary. Adjudicator Grieves also noted that the proposed psychological assessment was not reasonable and necessary, given that the clinical notes and records submitted made no reference to any psychological complaints in the two years since the accident.

R.R. v. State Farm Insurance Company (19-000226)

The claimant sought entitlement to IRBs and two treatment plans for chiropractic services. The insurer argued that the claimant was barred from proceeding with the three disputed claims because she failed to dispute the denials within the two year limitation period. Adjudicator Norris agreed with the insurer, finding that the insurer’s refusals to pay the benefits claimed were clear and unequivocal. Adjudicator Norris also declined to exercise his discretion to extend the limitation period pursuant to section 7 of the LAT Act, noting that the length of the delay was significant (nearly one year beyond the expiration of the limitation period) and that the claimant made no submissions to indicate that she had an intention to dispute the denial prior to the expiration of the limitation period.

G.W. v. Coachman Insurance Company (16-003306)

The insurer sought reconsideration of the adjudicator’s decision regarding entitlement to ACBs, interest, and a special award. The claimant sought reconsideration of the adjudicator’s finding of an end date for IRBs and ACBs, and the formula used to calculate the quantum of the special award. Vice-Chair Marzinotto partially granted both the insurer’s and the claimant’s requests. She held that the amount payable for ACBs based on a finding of unreasonably withholding benefits under s. 3(8) of the SABS was limited to the economic loss incurred by the claimant’s wife, which was less than the Form 1 amount. Vice-Chair Marzinotto found that the arbitrator did not err in finding an end date for IRBs and ACBs at the 104-week mark as the hearing took place in the pre-104 week period and there was no evidence submitted on post-104-week entitlement. Vice-Chair Marzinotto held that the formula for calculating the maximum amount available for a Special Award is: 50 percent x (benefits that were unreasonably withheld or delayed + SABS interest on these benefits calculated under the Schedule + compound interest calculated according to s.10 O. Reg.664).

Wawanesa Mutual Insurance Company v. S.P. (19-000982)

The insurer sought repayment of income replacement benefits that were paid as a result of misrepresentation. Adjudicator Manigat found that the claimant made a wilful misrepresentation of her employment status, the insurer had given proper notice under s. 53 of the SABS, and the insurer was entitled to repayment of IRBs plus interest. The claimant alleged that she was employed at the time of the accident. The evidence submitted by the insurer demonstrated that the claimant had not been employed.

O.M. v. Aviva Insurance Canada (16-003552)

The claimant sought entitlement to IRBs. The claimant failed to attend the scheduled hearing and did not submit any evidence in support of the claim. Vice Chair Shapiro dismissed the claim.

O.I. v. RBC General Insurance Company (18-005774)

The claimant sought entitlement to IRBs for a six months period. Adjudicator Maedel dismissed the claim. He found that the claimant did not suffer job-limiting chronic pain; rather, the claimant suffered some pain in his right shoulder and lower back, but maintained normal range of motion. These impairments did not render him substantially unable to complete his essential work tasks.

M.R. v. Allstate Insurance Company (17-008969)

The claimant sought reconsideration of the Tribunal’s denial of ACBs and order barring the claim for medical benefits based on IE Non-Attendance; the Tribunal had awarded IRBs. Adjudicator Mazerolle held that the Tribunal denials did not meet the criteria in Rule 18 for reconsideration. However, Adjudicator Mazerolle found that the award of IRBs beyond the 104-week mark was an error and that the claimant had not led evidence to support IRBs on the “complete inability” test.

P.M. v. Aviva Insurance Canada (17-005419)

The claimant sought entitlement to IRBs and medical benefits. She also sought entitlement to an accounting report. Adjudicator Watt denied the claim for IRBs, as the claimant had been paid IRBs up to the date she returned to work on a modified basis. He found the treatment plans not reasonable and necessary. Finally, he held that the cost of the accounting report was not payable because it was the claimant’s behaviour which resulted in difficulties calculating the IRB. She withheld information regarding disability benefits and her return to work. Furthermore, she was not a self-employed person.

Fordjour v. Royal and Sun Alliance Insurance Company of Canada (2019 ONSC 6268)

The claimant judicial review of the dismissal of her claim on two grounds: that she her family physician should be entitled to give opinion evidence, and that the adjudicator did not properly address causation. The Divisional Court agreed with the claimant and remitted the matter for a new hearing. It held that the Tribunal erred in not permitting the family physician to give opinion evidence at the hearing. The Divisional Court also wrote that the Tribunal had not set out the causation test it had applied, and that it was no appropriate for the test to be “implied.”