Category: Income Replacement Benefits

Applicant v. Aviva Insurance Company of Canada (17-005179)

The insurer denied medical benefits for physiotherapy, the cost of an orthopedic assessment, and the cost of a chronic pain assessment based on its finding that the claimant’s injuries fell within the MIG. The insurer also terminated the claimant’s income replacement benefit approximately nine months after the accident on the recommendations made in three IE reports. The claimant disputed the termination. Adjudicator Norris held that the claimant sustained a minor injury and therefore was not entitled to the medical benefits in dispute. He also found that claimant was not entitled to any additional income replacement benefits. Adjudicator Norris was compelled by the insurer’s expert evidence, which was more recent than the applicant’s evidence, and found that the insurer’s evidence outweighed the claimant’s evidence because the claimant had not provided any expert evidence or evidence from a family physician.

Applicant v Coachman Insurance Company (17-004906)

The self-employed claimant and insurer disagreed about the quantum of IRBs; the claimant also sought interest on medical benefits approved shortly before the hearing, and a special award. Adjudicator Victor held that it was reasonable to base IRB calculations on the year prior’s gross business income as contemplated in s.4(3) of the SABS, and as such the claimant was entitled to IRBs based on the two income tax returns he provided within the stipulated timeframe. Adjudicator Victor held that requests for further and supporting information were excessive and that the claimant was only required to prove his self-employment income in accordance with the SABS. The claimant went further than required by providing an accounting report. There was a small period of non-compliance by the claimant for which the insurer was entitled to withhold IRB payments. Adjudicator Victor also held that an insurer being incorrect about the claimant not having proved the quantum of IRBs was not enough to grant a special award. Interest was awarded on the approved medical benefits.

Applicant v. Wawanesa Mutual Insurance Company (17-005427)

The claimant sought entitlement to an income replacement benefit from the time the benefit was terminated approximately one year and one month following the accident onward, and entitlement to medical benefits for chiropractic services, psychological services, and custom orthotics. Adjudicator Sewrattan held that the claimant was not entitled to any of the benefits in dispute. While the claimant advanced evidence to suggest he may have required further counseling and displayed emotional difficulty during an EUO, the evidence did not prove that the claimant was unable to perform the essential tasks of his pre-accident employment. The claimant failed to prove that the chiropractic treatment plans were reasonable and necessary as the goals of the plans were not linked to the claimant’s injuries. The psychological treatment plan was not analyzed because the insurer subsequently approved more sessions of the same treatment in dispute. Lastly, Adjudicator Sewrattan held the claimant was not entitled to payment for custom orthotics because he incurred the expense before submitting a treatment plan.

Applicant v. Certas Direct Insurance Company (17-003553)

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.

Applicant v. Northbridge Insurance Company (17-002232)

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.

Applicant v. Aviva General Insurance (17-004389)

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.

V.S. v. Economical Mutual Insurance Company (17-000751)

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.

R.T. v. Aviva Insurance Canada (17-004564)

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.

Applicant v. Coachman Insurance Company (16-003306)

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.

A.S. v. Pafco Insurance (16-003683)

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.