Category: Income Replacement Benefits

Applicant v. Aviva General Insurance (17-008498)

The claimant sought entitlement to IRBs from the date of denial until her return to work and various medical benefits, including a chronic pain assessment, and a two-part physiatrist assessment. Adjudicator Lake held that the claimant did not meet the IRBs test and both the chronic pain assessment and two-part physiatry assessment were not reasonable and necessary. The only evidence on the claimant’s essential tasks of pre-accident employment were from self-reports to medical professionals. There were no entries in medical records regarding her ability to work for the period in dispute. The insurer relied on three IE reports (psychology, neurology, orthopedic surgeon) which all concluded that the claimant did not suffer an inability to perform the essential tasks of her pre-accident employment. The adjudicator found the IE reports to be largely convincing accounts of the claimant’s post-accident condition. With regard to the disputed chronic pain assessment, the adjudicator preferred the two IE reports from the insurer which both found that the assessment was not reasonable and necessary. The adjudicator noted that the referring chiropractor did not make a finding as to whether the claimant’s alleged chronic pain occurred as a result of the accident, failed to comment on pre-accident migraines, and omitted details of pain levels and complaints, whereas one of the IE assessors was authorized to practice on chronic pain management. Additionally, there was no medical documentation on file beyond the assessment report from the referring chiropractor. With regard to the two-part physiatry assessment, there was conflicting evidence regarding the claimant’s impairments as she was able to return to work in a physical role, yet unable to complete ADLs involving her work tasks. The adjudicator also noted that the claimant did not pursue other recommended investigations, such as an MRI, to determine her physical status, which was one of the goals of the treatment plans.

Applicant v. Aviva Insurance (17-006632)

The claimant sought entitlement to IRBs from October 24, 2015 to April 1, 2017. Adjudicator Norris held that the claimant was not entitled to any IRBs beyond October 23, 2015 as the medical records did not contain any information confirming his disability as a result of the accident and the claimant’s psychological assessment did little to address the claimant’s ability to work. The OCF-3 indicated that he did not meet the IRBs test, but noted that the claimant had been laid off. One day after the OCF-3 was completed, a second OCF-3 was completed by a different health professional which indicated that the claimant met the IRBs test and diagnosed the claimant with soft-tissue injuries, anxiety, a concussion, and post-concussion syndrome. The claimant attended post-secondary education and obtained an Honours Diploma as a Community Services Worker post-accident. The claimant received IRBs until October 23, 2015 when the benefit was stopped based a multi-disciplinary IE report, which found that he did not meet the IRBs test.

R.K. v. Aviva Insurance Company (16-003997)

The insurer sought reconsideration of the Tribunal’s award of medical benefits, arguing that the claimant had not provided invoices evidencing that services were incurred. Associate Chair Jovanovic denied the reconsideration. He held that the adjudicator had considered and weighed the evidence and accepted that the medical treatment in dispute was reasonable, and that it was incurred.

S.C. v. Pembridge Insurance Company (17-007017)

The claimant sought entitlement to income replacement benefits for a period of 3 weeks and 4 days (from stoppage to return to work). Adjudicator Hans found that the claimant failed to establish that she was substantially unable to complete the essential tasks of her pre-accident employment, and the claimed benefits were not payable.

Applicant v. RBC General Insurance Company (17-003702)

The claimant sought entitlement to pre-104 week and post-104 week IRBs. Adjudicator Reilly dismissed the claims. She preferred the IE assessors opinions of that of the claimant’s experts, and noted that some of the claimant’s complaints did not appear causally related to the accident or pre-dated the accident. The claimant’s experts also failed to consider differences in the claimant’s self-reporting as compared to the documentary record.

Aviva General Insurance v. Respondent (17-007666)

The insurer sought repayment of IRBs; the claimant sought entitlement to further IRBs. Adjudicator Kershaw held that the insurer was entitled to repayment of IRBs for the period the claimant was receiving disability benefits from Co-operators Insurance (Edge). She concluded that the Edge benefits were an income continuation plan, and that it was irrelevant whether the claimant was employed or self-employed at the time of the accident. Adjudicator Kershaw also concluded that the claimant was entitled to IRBs for the full 104 week period, subject to any payments of IRBs already made by the insurer.

Applicant v The Guarantee Company of North America (17-004229)

The claimant sought entitlement to IRBs post 104 weeks and a special award. Adjudicator Neilson held that the claimant was not entitled to IRBs after 104 weeks. The adjudicator held that the employment identified by the insurer’s vocational specialist was reasonably suited by the claimant’s education, training and experience; the claimant had not made a sincere effort to obtain suitable employment; the claimant’s evidence regarding his level of pain was not reliable; and the claimant did not establish that he had a disability or impairment that prevented him from obtaining employment at any of the jobs identified by the insurer as suitable. Procedurally, the insurer objected to the affidavit of the claimant’s family physician being made an exhibit on procedural fairness grounds as it would not be able to cross-examine the physician. The adjudicator allowed the affidavit to be filed as an exhibit and held that the Tribunal’s duty of fairness to parties is to ensure they understand the case they have to meet and allow them to respond. The adjudicator held that the insurer did not demonstrate that it would suffer any real prejudice as it was aware that the claimant intended to rely on the physician’s records and affidavit and it made no efforts to cross-examine the physician during the month before the hearing. The insurer also sought to have a portion of the family physician’s opinion struck on the basis that he was not an expert, but rather a treating physician, and that he failed to comply with Rule 53.03 of the Rules of Civil Procedure and Westerhof. The adjudicator held that the Rules of Civil Procedure did not apply to the LAT, and the family physician was qualified to provide professional and scientific, or technical information and opinion based on the special knowledge of a physician through his education, training and experience in accordance with LAT Rule 10.1. The adjudicator further noted that the family physician would be a “participant expert” according to Westerhof and would be allowed to provide evidence about his own observations without having to sign an acknowledge of his duty to the court/Tribunal. The adjudicator declined to exclude the claimant from the hearing during the insurer’s expert’s testimony and held that the claimant had a right to hear the evidence and there was no evidence to suggest that there would be a concern that the claimant would tailor his evidence. The adjudicator refused to produce one of the insurer’s expert’s raw data during the hearing as it was not sought at the case conference and could be misconstrued by a person without proper training. The adjudicator allowed both parties to review the raw test data and ask questions on it.

Applicant v Aviva Insurance Canada (17-008143)

The claimant sought entitlement to IRBs, medical benefits, and various costs of examinations, in addition to a special award. Adjudicator Fricot held that the claimant was not entitled to any of the benefits claimed. The claimant argued that all documentation submitted by the insurer be ruled inadmissible as it was not sworn, or that it should be given no weight as it was not authenticated. The claimant also argued that no weight should be given to the statements reported to be made to assessors and referenced in their reports. The adjudicator denied this request as the production and use of the relevant documents was contemplated and agreed to by the parties. The claimant also objected to the admissibility of the insurer’s reply submissions and argued that the insurer was not entitled to file reply submissions without leave. The adjudicator held that the reply submissions were admissible and the insurer was entitled to make submissions in response due to the nature of the allegations made in the claimant’s reply submissions and because the claimant alleged that the insurer had breached the Tribunal’s Order. There was no prejudice to the claimant as it was allowed to reply at the oral portion of the hearing. The adjudicator held that the claimant was not entitled to IRBs as he was not employed, self-employed or in receipt of EI benefits at the time of the accident, nor had he worked 26 of the 52 weeks pre-accident. The claimant had worked for less than 26 weeks in the 52 weeks pre-accident, and had been laid off between 2014 and 2016. The adjudicator held that while there was record of being “laid off”, the evidence did not establish an ongoing employment relationship with the claimant’s employer between 2014 to 2016. The adjudicator held that the medical benefits and assessment plans sought were not reasonable and necessary because his accident-related injuries had resolved prior .

Applicant v Aviva Insurance Canada (17-008107)

The claimant sought entitlement to IRBs and interest on the overdue payment of benefits. Adjudicator Ferguson held that the claimant was not entitled to IRBs or interest as she did not prove that she suffered a substantial inability to perform the essential tasks of her pre-accident employment. The claimant failed to disclose the availability of modified work offered by her employer to IE assessors. Adjudicator Ferguson held that the onus was on the claimant to explain this omission and her apparent refusal to consider modified work with her employer. The claimant also failed to disclose a prior workplace injury to assessors. Adjudicator Ferguson held that this raised doubts about the causation of her impairments and the claimant’s argument that the accident exacerbated these injuries was unsupported by medical evidence. Adjudicator Ferguson also preferred the insurer’s psychological report because it included validity testing.

J.B. v. The Guarantee Company of North America (17-003860)

The claimant sought entitlement to ongoing IRBs, and various medical benefits. Adjudicator Anwar found the claimant to be credible, and concluded that he was unable to perform the essential tasks of his pre-accident employment in home construction. IRBs were awarded up to the date of the 104 week anniversary, with IRBs beyond that date to be addressed by the parties at a later date. The adjudicator did not award the claimed treatment plans because the claimant failed to submit them as part of his case brief. Costs and a special award were not issued.