Category: Income Replacement Benefits

Applicant v. Unica Insurance Inc. (18-009767)

This preliminary issue hearing was brought to determine whether the claimant was precluded from applying for post-104 week income replacement benefits, as the issue had already been dealt with as a result of a prior application to the Tribunal. An extensive hearing had previously been conducted and a final decision dealing with both pre and post-104 week IRBs was issued by the Tribunal. Adjudicator Boyce thus found that res judicata applied, and the claimant was precluded from proceeding with her claim for a post-104 week IRB.

C.G. v. Travelers Insurance (18-001021)

The claimant applied to the Tribunal seeking entitlement to IRBs and medical benefits. The insurer raised a preliminary issue requesting that the Tribunal bar the claimant’s dispute over IRBs due to his failure to attend a s. 44 FAE with a kinesiologist. Adjudicator Létourneau concluded that the claimant was entitled to IRBs for the pre-104 week period but not entitled to IRBs for the post-104 week period. With respect to the preliminary issue, Adjudicator Létourneau concluded that the proposed s. 44 FAE was not reasonably necessary. Adjudicator Létourneau found that the s. 44 neurological and physiatry assessments afforded the insurer ample opportunity to assess the claimant’s physical impairments and that a kinesiologist would not be able to comment more specifically on medical impairments than what was already obtained. Adjudicator Létourneau also noted that the claimant worked as a taxi driver pre-accident and that the FAE would not likely have provided more detail with respect to the claimant’s pre-accident job duties. With respect to the IRB dispute, Adjudicator Létourneau concluded that the claimant had provided sufficient evidence that but for the accident, he would have continued to drive a taxi. Adjudicator Létourneau pointed to the claimant’s back pain with prolonged sitting and mental impairments as causing his inability to complete the tasks of his pre-accident employment. As for the post-104 week period, Adjudicator Létourneau noted that the claimant had returned to driving, evidenced by the claimant’s own reporting and surveillance. Adjudicator Létourneau concluded that the claimant could return to work as a driver in other capacities, such as a chauffeur or delivery driver, and that he therefore did not meet the post-104 week disability test. Finally, Adjudicator Létourneau awarded all of the medical benefits plus interest.

J.Y. v. Aviva Insurance Canada (17-009034)

The claimant sought reconsideration of the Tribunal’s decision to dismiss all of his claims. Adjudicator Watt dismissed the reconsideration request. He held that the claimant had failed to provide written submissions to the Tribunal as ordered by the hearing adjudicator; that the surveillance considered by the Tribunal was not improper; that the Tribunal considered the proper test for IRBs; and that the Tribunal was not required to accept the evidence of an assessor whose report was inconsistent and contrary to other evidence.

L.R. v. RSA Insurance Company of Canada (18-002989)

This preliminary issue addressed the limitation period in the context of a claim for IRBs and ACBs. The insurer denied the benefits more than two years prior to the LAT application. The claimant was found in June 2016 to lack capacity to instruct counsel and to require the assistance of a litigation guardian. Adjudicator Punyarthi held that the provisions suspending the Limitations Act did not apply to the Tribunal’s proceedings. However, Adjudicator Punyarthi concluded that section 7 of the LAT Act permitted the extension of the limitation period until the time his LAT application was filed. The adjudicator wrote that the reason for the delay was explained and that there was a bona fide intention to apply to the LAT within the two-year time period. There was also no prejudice to the insurer and there was potential merit to the claims.

Certas Direct Insurance Company v. K.P. (18-005710)

The insurer sought repayment of IRBs alleging that the claimant had misrepresented his work status for a period of seven months. Adjudicator Parish accepted that the claimant was working during the seven month period he was receiving IRBs, and that the claimant wilfully misrepresented his work status in signing an OCF-13 which stated he had not earned any income, as well as stating the same during an examination under oath. The adjudicator also held that the insurer had requested repayment in accordance with section 52. Because the claimant committed a material misrepresentation, the 12 month time limit on the repayment request did not apply.

A.O. v. Unifund Assurance Company (18-003798)

This preliminary issue hearing was brought to determine whether the claimant was statute barred from proceeding with her claim for IRBs because she failed to apply within the two year limitation period after its refusal to pay IRBs. The claimant conceded that she did not file her application within the two year limitation period, and instead requested that the Tribunal extend her time for filing pursuant to section 7 of the LAT Act. Adjudicator Lake allowed the claimant to proceed with her claim for IRBs, because the length of delay was minimal (7 business days), the prejudice to the respondent was non-existent, and there was merit to the claimant’s appeal of the respondent’s denial.

T.C. v. Aviva Insurance Canada (17-008107)

The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to IRBs. Adjudicator Boyce dismissed the reconsideration request. He held that the claimant’s arguments amounted to an attempt to re-argue the case and reweigh the evidence and credibility, which was not the purpose of a reconsideration. He also held that a new medicolegal opinion obtained by the claimant, which could have been obtained earlier and would not be considered as part of the reconsideration.

A.P. v. Coachman Insurance Company (17-004906)

The Tribunal had awarded the claimant IRBs for a specific quantum and specific time period; the Tribunal also awarded interest on medical benefits. The insurer sought reconsideration, arguing that the decision did not accurately reflect the timeframe for payment of IRBs and when interest became payable. Adjudicator Lester partially granted the reconsideration request. She held that the Tribunal’s decision expressed the IRB timeframe in six different ways, and it was unclear from the decision what the time frame in dispute was. She also held that interest was not payable until medical treatment was incurred. The decision was referred back to the hearing adjudicator to amend the decision in accordance with the reconsideration.

S.R. v. Aviva Insurance Company (17-004556)

The claimant sought reconsideration of the Tribunal’s decision that the IRB claim was not barred by the limitation period. The request was made more than 12 months after the Tribunal’s decision. Vice Chair Batty dismissed the request, holding that it was made outside of the required time period, and that the LAT Rules did not favour extending the 21 day deadline.

C.L. v. Aviva General Insurance (17-004389)

The insurer sought reconsideration of the Tribunal’s award of ongoing IRBs based on psychological impairment. Vice Chair Hunter dismissed the reconsideration request. He concluded that the Tribunal provided careful and detailed reasons for its decision, and that there was no basis to interfere with it. He also wrote that the Tribunal correctly found that the claimant had proven that he was substantially unable to perform the essential tasks of his pre-accident employment as a real estate agent.