Category: Income Replacement Benefits

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.

H.A. v. Travelers Insurance (18-005178)

The claimant sought entitlement to IRBs, removal from the MIG, and three medical benefits. Adjudicator Lake concluded that the claimant had proven entitlement to only three months of IRBs, but that his injuries fell within the MIG. The remainder of the MIG limits was awarded on one of the treatment plans.

G.T. v. The Commonwell Mutual Insurance Group (17-004072)

The claimant sought entitlement to IRBs and two medical benefits. Adjudicator Gosio concluded that the claimant suffered a substantial inability to perform her job as a bartender up to the end of the 104 week period, but she did not meet the “complete inability” test. He accepted that there were other similar employment options available to the claimant, and for which opportunities existed in her community. The medical benefits for physical therapy and psychological therapy were found reasonable and necessary.