Category: Income Replacement Benefits

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.

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

The claimant sought entitlement to IRBs and three treatment plans. Adjudicator Anwar awarded IRBs but denied the treatment plans. He concluded that the claimant’s injuries prevented him from working as a drywaller and steel framer. The medical benefits were denied because the claimant failed to provide the disputed treatment plans as evidence and the Tribunal therefore could not determine that they were reasonable and necessary.

Applicant v. Aviva Insurance Canada (17-007959)

The claimant sought entitlement to IRBs and the cost of a chronic pain assessment. Adjudicator Watt dismissed both claims. Regarding IRBs, he held that the claimant was able to work. None of the claimant’s own physicians said that the claimant was unable to work, and the IE assessors made the same conclusions. Regarding the chronic pain assessment, the claimant made no submissions so the claim was dismissed.

C.M. v. Aviva General Insurance (17-005910)

The claimant sought entitlement to an additional seven months of IRBs and entitlement to a special award for IRBs that were paid at a lower rate than mandated by the SABS. Adjudicator Grant concluded that no further IRBs were payable for the disputed period because the medical evidence did not suggest an inability to continue in his pre-accident employment. In terms of the past IRBs, Adjudicator Grant concluded that although the insurer had corrected the weekly amount and paid with interest, the deduction of EI was unreasonable and the insurer did not correct the error until the LAT application was filed. An award of 50 percent was granted.

Applicant v. Royal Sun Alliance (RSA) (17-006236)

The claimant sought entitlement to two years of IRBs, removal from the MIG, and six treatment plans. Adjudicator Punyarthi concluded that the claimant sustained a concussion and that his injuries were therefore not minor. All of the disputed treatment plans were awarded because they directly addressed the impairments the claimant was suffering. Finally, Adjudicator Punyarthi awarded IRBs on the basis that the claimant could not complete the essential tasks of his employment as a produce clerk at a grocery store.

S.H. v Certas Home and Auto Insurance Company (17-006504)

The claimant sought entitlement to IRBs and interest. The insurer raised a third issue at the hearing, as to whether the claimant had complied with a production order. The claimant argued that she was entitled to IRBs, as she continued to receive treatment for her accident-related injuries. Adjudicator Boyce disagreed, noting that the test for IRBs was different than that for awarding medical benefits. Adjudicator Boyce preferred the evidence of the insurer’s assessors, and denied the claimant’s application for IRBs and interest.

Applicant v. Aviva Insurance Canada (17-005950)

The claimant sought entitlement to IRBs and three medical benefits. Adjudicator Go dismissed all of the claims other than the claimed psychological assessment. She held that there was insufficient information to support objective limitations or restrictions to support the IRB claim, and the claimant had not provided sufficient information to quantify the IRB even if it had been awarded. In terms of the medical benefits, two of the treatment plans were submitted to the wrong insurer and had never been submitted to the proper insurer. The claimed psychological assessment was awarded because Adjudicator Go favoured the evidence of the claimant’s assessor over that of the IE assessor.

Applicant v. Aviva Insurance Company of Canada (17-004147)

The claimant sought removal from the MIG and entitlement to IRBs and various medical benefits. The insurer argued that the claimant failed to attend an IE, which barred payment of further IRBs. Adjudicator Norris concluded that the claimant did not suffer pre-existing conditions that would prevent recovery under the MIG and that the claimant did not suffer psychological injuries in the accident. He also held that the claimant was not entitled to further IRBs, and that the claimant’s non-attendance at an IE without reasonable explanation barred payment of IRBs for the period of non-compliance.