The claimant sought entitlement to IRBs and a special award. The insurer sought repayment for an overpayment of IRBs. Adjudicator Anwar found that the claimant was not entitled to IRBs because she did not suffer a substantial inability to perform the essential tasks of her pre-accident job; a special award was also denied. The insurer was not entitled to repayment of IRBs because it had not submitted evidence regarding the payment of IRBs made to the claimant.
The claimant sought entitlement to IRBs and to the cost of his US hospital bill. Adjudicator Shapiro denied both claim. In terms of the IRBs, Adjudicator Shapiro held that the claimant did not suffer a substantial inability to return to work as a truck driver based on IE opinion and surveillance evidence of the claimant engaged in post-accident long-haul driving. The claim for hospital expenses was not payable because the insurer had paid up to the $50,000 medical benefits limits.
The claimant sought entitlement to IRBs for the pre- and post-104 week period. Adjudicator Ferguson held that the claimant did not suffer a physical inability to engage in his job as a realtor, but did suffer a psychological impairment preventing him from returning to work. Adjudicator Ferguson accepted that there were other stressors in the claimant’s life, but that the accident did cause psychological impairment as well. IRBs were awarded beyond the 104 week mark despite no specific opinion evidence to support the “complete inability,” based on the claimant being 65 years old and it being unlikely that he would be able to find alternative employment at his age.
The central issue in this dispute was the quantum of IRBs payable. The insurer sought repayment for IRBs in the amount of $6,535.62 due overpayment based on the claimant’s post-accident income. The dispute proceeded to an oral hearing. At the hearing, a timetable was set for written submissions. The claimant filed reply submissions 40 days past the deadline set at the hearing. The insurer sought to dismiss the claimant’s reply submissions from consideration. Adjudicator Truong allowed the reply submissions in the interest of natural justice and procedural fairness. Adjudicator Truong held that as the insurer was not entitled to respond to the claimant’s reply submissions, the insurer was not prejudiced by the claimant’s late submissions. As for the disputed quantum of IRBs, Adjudicator Truong held that the claimant’s collateral benefits disability plan, which provided payment for loss of income under an income continuation benefit plan, qualified as post-accident income and was deductible from the claimant’s IRB payment. Adjudicator Truong preferred the evidence of the insurer’s accountant and concluded that the insurer was entitled to repayment of $6,535.62.
The claimant sought a entitlement to income replacement benefits. At the outset of the hearing, the insurer sought an order dismissing the application as abandoned because the claimant had not submitted written submission prior to the oral hearing, as ordered at the case conference. In the alternative, the insurer sought to have any further evidence or written submissions struck from the record. Adjudicator Norris held that the parties could make written submissions after the oral testimony. With regards to the claim for IRBs, Adjudicator Norris found that claimant was not entitled to the benefit for the period in which he was in non-compliance with section 33 requests for an executed WSIB assignment. Adjudicator Norris also found the claimant was not entitled to IRBs as he had not declared his pre-accident income pursuant to the Income Tax Act.
The claimant sought entitlement to removal from the MIG, IRBs, ACBs, medical benefits, and special award. He argued that he sustained a fractured sternum, a concussion, and major depressive disorder as a result of the accident. Despite an IE assessor concluding that the fractured sternum was related to the accident, the insurer concluded otherwise based on the related CT scan being performed a month after the accident in a foreign country. Adjudicator Gosio concluded that the claimant did suffer a fractured sternum, a concussion, and psychological impairments from the accident. He removed the claimant from the MIG and awarded some of the claimed medical benefits. He awarded IRBs based on the claimant being unable to perform his employment as a realtor primarily due to psychological issues. Surveillance of the claimant being physically functional did not persuade Adjudicator Gosio that the claimant was untruthful or that he was able to return to his employment. Adjudicator Gosio also awarded fifteen months of ACBs and held that the insurer had unreasonably withheld payment. Services were deemed incurred in accordance with section 3(8). Finally, Adjudicator Gosio issued a special award against the insurer in relation to ACBs due to the manner in which it denied ACBs and mislead the claimant on the IE physician’s opinion.
The claimant sought reconsideration of the Tribunal’s decision to deny the claim for ongoing IRBs. The claimant requested reconsideration on the basis that the Tribunal denied him natural justice and procedural fairness. Associate Chair Batty agreed with the claimant that the Tribunal had overlooked or mischaracterized parts of the claimant’s evidence at the LAT hearing. Associate Chair Batty ordered that the application would be reheard in writing and be limited to considering anew evidence and submissions already provided by the parties.
The claimant sought entitlement to IRBs for the period of June 23, 2015, to December 1, 2016. The insurer sought repayment of IRBs in the amount of $1,600.00. The parties agree that the claimant was self-employed as the owner/operator of a gas station and convenience store for 26 out of the 52 weeks prior to the accident. In November 2015, the claimant became the owner/operator of a coffee shop. The claimant testified that he was only able to work at the coffee shop for 25 hours per week due to accident-related impairments, compared with his pre-accident ability to work 50-60 hours per week at the gas station/convenience store. Adjudicator Neilson found that the claimant was substantially unable to perform the essential tasks of his pre-accident employment for the period claimed. Adjudicator Neilson found that an overpayment in IRBs had been made for a 5.5-week period because post-accident income had not been deducted from the amount paid. The insurer was found entitled to the amount that was overpaid.
The claimant appealed Aviva’s MIG determination and sought medical benefits for chiropractic services, the completion of numerous OCF-3s, a social work assessment, and an orthopaedic assessment. The claimant also sought IRBs. Aviva opposed the claimant’s request to have a treating chiropractor qualified as an expert. Adjudicator Hines held that the claimant’s injuries were within the MIG and none of the OCF-18s or OCF-3s were reasonable and necessary. The adjudicator further held that the claimant was not entitled to IRBs. The adjudicator also held that the treating chiropractor was not qualified as an expert witness, but could give evidence in his capacity as a treating chiropractor. The adjudicator held that the claimant sustained soft-tissue injuries, which fell within the MIG. The adjudicator held that the chiropractor’s diagnosis of post-concussion syndrome/concussion was outside the scope of his expertise, and the adjudicator also found inconsistencies in the claimant’s evidence with respect to “loss of consciousness”. The adjudicator preferred Aviva’s IE report from a psychologist over the claimant’s report from a social worker with respect to psychological injuries. The adjudicator also held that the rates charged on the OCF-18s exceeded the amounts payable under the FSCO Guideline. The OCF-3s were not payable as particulars were not provided with respect to the claimant’s change in condition and updated OCF-3s were not requested by Aviva. Lastly, the adjudicator preferred Aviva’s multi-disciplinary report over the claimant’s evidence (OCF-3s) with respect to IRBs, and held that the claimant did not suffer a substantial inability to perform the essential tasks of a material handler or casino dealer.
The claimant and the insurer disputed the proper calculation of IRBs. The claimant was self-employed at the time of the accident. He argued that his IRB entitlement was to be calculated based solely on his farming income, without regard to losses attributed to his separate numbered corporation. Aviva argued that the losses of the numbered corporation had to be considered, and that there was an overpayment of IRBs. Adjudicator Ferguson rejected the insurer’s approach and held that the claimant could base his IRB solely upon his gross annual employment income without regard to the numbered corporation’s losses.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP