Category: Income Replacement Benefits

R.P. v Aviva Insurance Canada (17-003500)

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.

Aviva Insurance Canada v. W.D.W. (17-005894)

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.

S.W. v. Aviva Insurance Company of Canada (17-005302)

At the beginning of the hearing, the insurer conceded that the impairments suffered by the claimant were sufficient for her to meet the test for IRBs, so the issue before Adjudicator Flude was what amounts the insurer could deduct from the $400 per week IRB quantum regarding the claimant’s EI maternity benefits and employer top up (at the time of the accident, the claimant was on maternity leave). The insurer also submitted that the claimant had available to her, but failed to apply for, a short/long-term disability benefit through her employer. The insurer took the position that the claimant was obliged to apply for that benefit, and that it was entitled to deduct from the IRB quantum 70% of the amount she would have received had she applied. Adjudicator Flude held that the insurer could deduct 70% of the EI and employer top-up from the IRBs payable to the claimant. Adjudicator Flude found that the insurer did not provide information regarding the quantum of benefits that would have been available through the short and long-term disability benefits available to the claimant. Adjudicator Flude did not allow for any deductions to the IRB quantum in relation to the short and long-term disability benefits.

Applicant v. Certas Direct (17-002792)

The claimant sought entitlement to IRBs, one treatment plan, and interest. Adjudicator Msosa held that the medical evidence did not indicate the claimant had suffered a substantial inability to perform his employment as a security guard and was therefore not entitled to IRBs. The claimant argued that the treatment plan was payable as the insurer had failed to provide ten days notice, as required by section 38(11). Adjudicator Msosa found that the insurer had responded within the timelines required by the SABS, and further concluded that the claimant was not entitled to the medical benefit sought as it was not reasonable and necessary.

Applicant v. Aviva Insurance Company (17-002638)

The claimant sought entitlement to ongoing IRBs, various medical benefits outside of the MIG, and a special award. The claimant submitted that psychological impairments and chronic pain took him outside of the MIG. Adjudicator Boyce found that the claimant’s impairments were predominantly minor injuries, holding that in the absence of evidence of a full or partial tear, the claimant’s shoulder tendonitis was within the MIG. The claimant was found not to have a psychological diagnosis. Adjudicator Boyce held that the claimant had not proven that he had missed work as a result of the accident and was therefore not entitled to IRBs. A special award was denied.

Applicant v. Certas Home and Auto Insurance Company (17-003172)

The claimant sought entitlement to further income replacement benefits and the insurer sought repayment of IRBs it paid to the claimant calculated on the understanding that he was an employee rather than self-employed. The claimant did not return to work after the accident citing his daily use of marijuana to control his anxiety, depression, stress, paranoia, and pain as the reason. Adjudicator Maher held that the claimant was not entitled to further IRBs. With respect to the overpayment issue, Adjudicator Maher held that while the insurer had overpaid IRBs to the claimant, he was not required to repay the insurer because the insurer did not give proper notice of the amount to be repaid and did not satisfy the Adjudicator that the overpayment resulted from any wilful misrepresentation on the part of the claimant.

Applicant v. Aviva Insurance (16-004312)

The claimant disputed the insurer’s termination of income replacement benefits eight months after the accident. Adjudicator Paluch held the claimant was entitled to receive IRBs from the date of termination to the date of the decision and ongoing. The claimant’s medical evidence with respect to her chronic pain satisfied the arbitrator on a balance of probabilities that she was substantially unable to perform the essential tasks of her employment as a general labourer. There were a number of procedural issues addressed. Adjudicator Paluch denied the insurer’s motion to admit surveillance evidence and add an investigator as a witness on the basis that the evidence and witness requests were not delivered in accordance with an earlier Tribunal Order. The claimant’s request to exclude three expert reports for lack of opportunity to cross examine them was declined on the basis that an earlier Tribunal Order specifically allowed for all expert evidence to be provided by reports. An insurer’s addendum report was not permitted to be admitted into evidence because it was served after the deadline provided for in an earlier Tribunal Order.

V.A. v. Wawanesa Mutual Insurance Company (17-002948)

The claimant disputed his MIG status; entitlement to payment for treatment; entitlement to payment for examinations and completion of OCF-3s; and entitlement to IRBs. Adjudicator Sewrattan denied all of the claims. The claimant, allegedly suffering from chronic pain, failed to prove that he suffered from an injury not predominantly minor in nature. The expert reports relied upon by the claimant were scant in their descriptions of methodologies used to reach the diagnoses made. The claimant was self-employed at the material time and failed to provide an intelligible basis upon which IRB could be calculated. Although he may be entitled to an IRB, he failed to prove what the weekly rate of the benefit should be. As a result, Adjudicator Sewrattan held his IRB entitlement to be $0 per week.

Applicant v. Certas Home and Auto Insurance (16-003480)

The claimant, who was working as a PSW at the time of the accident, sought entitlement to pre-104 IRBs and a treatment plan proposing a psychological assessment. Adjudicator Reilly found that the claimant was entitled to the cost of the proposed assessment plus interest, but she was not entitled to IRBs. Adjudicator Reilly concluded that the claimant failed to prove that she suffered a substantial inability to perform her pre-accident employment.

M.T.G. v. Aviva General Insurance (formerly RBC General Insurance) (17-002122)

The insurer requested the preliminary hearing to address whether the claimant was limitation barred from pursuing a claim for IRBs because the LAT application was not commenced within two years of the insurer’s denial. Adjudicator Gottfried held that the claimant was not precluded from applying for IRBs. The limitations analysis involved a lengthy review of correspondence between Aviva, the claimant, and the claimant’s lawyer regarding IRB stoppage. The limitation decision rested on which letter from the insurer started the limitation clock. The claimant and his lawyer both denied receiving a letter from Aviva regarding IRB stoppage dated February 11 2015. Aviva claimed that this letter was sent to the claimant by regular mail and copied to the claimant’s lawyer. Adjudicator Gottfried accepted the affidavit evidence of the claimant and his lawyer that it was not received. Adjudicator Gottfried found that the date of discoverability of the denial was August 17, 2015, which is the date of a follow-up letter from Aviva to the claimant’s lawyer regarding IRB payments and stoppage. Aviva argued that even if the claimant’s lawyer had not received a copy of the original stoppage letter in February 2015, a copy of that letter was included in the complete AB file materials provided to the claimant’s lawyer on March 23, 2015. Adjudicator Gottfried’s analysis did not clearly state why this date was not accepted, though the evidence suggested that the claimant’s lawyer did not review the AB file materials.