Category: Income Replacement Benefits

A.D. v. Aviva Insurance Canada (17-004156)

The claimant sought entitlement to income replacement benefits. The insurer denied the claim based on a number of IE reports. Adjudicator Chris Sewrattan, on review of the chronology of the claimant’s application, held that the claimant failed to satisfy the disability test for ongoing income replacement benefits. However, the period before the insurer’s denial and the time it received an application for benefits and a disability certificate, was deemed payable by section 36. Although sought, a special award was not awarded.

Applicant v. RSA Insurance Company (17-000502)

The claimant sought pre- and post-104 IRBs and entitlement to various medical benefits, as well as the cost of a completed OCF-3. Adjudicator Truong found the claimant to be an unreliable witness at the oral hearing, and he gave less weight to the s. 25 psychology opinion as the claimant’s unreliable self-reporting was the entire basis for the s. 25 report. Adjudicator Truong found that the claimant was not entitled to any of the benefits in dispute. The cost of the OCF-3 was found not payable as it was not requested by the insurer and it was not required under ss. 21, 36, 37 of the SABS.

P.S. v. Aviva Insurance Canada (17-003200)

The claimant sought entitlement to IRBs and the cost of an orthopaedic assessment. Adjudicator Watt rejected both claims. He preferred the evidence of the IE assessors, who concluded that the claimant suffered soft tissue injuries and was able to return to his pre-accident employment. The family physician made no recommendations regarding avoiding work or referrals to specialists, and the treating chiropractor suggested that the claimant could return to work. The evidence also showed that the claimant had started a new job the summer after the accident. The disputed orthopaedic assessment was not awarded because the claimant did not submit evidence regarding the stated goals of the assessment or show why it was reasonable and necessary.

Applicant v. State Farm Insurance (16-004619)

The claimant sought ongoing IRBs. Adjudicator Gosio rejected the claim. He held that the claimant had failed to meet her burden under the post-104 week test. In particular, he was critical of the claimant’s assessors basing their report solely on the claimant’s self-reporting, the assessors failure to consider the claimant’s vocational background, and the failure to identify any documentation that had been reviewed. The adjudicator preferred the conclusions of the IE assessors that there were potential occupations which the claimant could engage in.

Applicant v. Aviva General Insurance (17-002651)

The claimant sought ongoing IRBs. Adjudicator Sewrattan dismissed the claim on the basis that the claimant had failed to prove what his essential pre-accident employment tasks were, which of those tasks he was unable to perform, and the extent to which the claimant was unable to perform those tasks.

C.P. v. Wawanesa Mutual Insurance Company (17-001931)

The claimant sought entitlement to income replacement benefits. The insurer denied the benefits citing a return to work. The claimant sought IRBs for the period not working as well as ongoing. Adjudicator Ruth Gottfried concluded the claimant was entitled to IRBs for the time when the claimant was not working, and should have been paid, if not done so already. However, following the denial letter by the insurer, no further benefits were owed.

D.W. v. The Co-operators (17-000388)

The claimant sought reconsideration of the Tribunal’s denial of IRBs. The crux of the issue was whether the claimant could claim IRBs after the first 104 weeks without first receiving IRBs during the first 104 weeks. The Tribunal initially ruled that the claimant could not seek IRBs. Executive Chair Lamoureux confirmed the result, but on different reasons. She held that according to the language of the SABS and the Court of Appeal’s reasons in Wadhwani v. State Farm, an insured did have to first suffer a “substantial inability” within the first 104 weeks after the accident in order to receive any IRBs beyond the 104 weeks. Where the Executive Chair differed with the original decision was in her view that an insured’s entitlement to IRBs within the first 104 weeks could be determined looking to evidence generated after the first 104 weeks. Essentially, the claimant had to prove that he suffered a “substantial inability” within the first 104 weeks to receive IRBs, but that he did not have to satisfy that evidentiary burden before the 104 week mark passed. The reconsideration was ultimately dismissed because the claimant’s evidence was inconsistent and did not support the “substantial inability” test.

D.W. v. The Co-operators (17-000388)

The claimant sought reconsideration of the Tribunal’s denial of IRBs. The crux of the issue was whether the claimant could claim IRBs after the first 104 weeks without first receiving IRBs during the first 104 weeks. The Tribunal initially ruled that the claimant could not seek IRBs. Executive Chair Lamoureux confirmed the result, but on different reasons. She held that according to the language of the SABS and the Court of Appeal’s reasons in Wadhwani v. State Farm, an insured did have to first suffer a “substantial inability” within the first 104 weeks after the accident in order to receive any IRBs beyond the 104 weeks. Where the Executive Chair differed with the original decision was in her view that an insured’s entitlement to IRBs within the first 104 weeks could be determined looking to evidence generated after the first 104 weeks. Essentially, the claimant had to prove that he suffered a “substantial inability” within the first 104 weeks to receive IRBs, but that he did not have to satisfy that evidentiary burden before the 104 week mark passed. The reconsideration was ultimately dismissed because the claimant’s evidence was inconsistent and did not support the “substantial inability” test.

Y.L. v. Pafco (17-000480)

The claimant sought entitlement to IRBs. Arbitrator Neilson found that the claimant was not entitled to IRBs as she found the claimant was not employed or receiving employment insurance at the time of the accident and had not worked for at least 26 weeks during the 52 weeks prior to the accident. Arbitrator Neilson preferred the documentary evidence of the respondent over the oral testimony of the claimant and the claimant’s witnesses.

Applicant v. RSA Insurance (17-000233)

The claimant disputed his entitlement to income replacement benefits (IRBs), medical benefits and the MIG. Adjudicator Treksler concluded that the claimant’s injuries fell outside of the MIG due a post-accident psychological impairment and diagnosis of chronic pain syndrome. In her reasons, Adjudicator Treksler noted that she preferred the evidence of the claimant’s family physician to the IE assessors and concluded that there was sufficient evidence in the claimant’s clinical notes and records of a psychological impairment and chronic pain syndrome to warrant the claimant’s removal from the MIG. Adjudicator Treksler also found that the disputed psychological assessment was payable. With respect to his dispute over IRBs, Adjudicator Treksler concluded that the claimant met the pre-104 week IRB disability test. Adjudicator Treksler noted that the claimant’s pre-accident employment was physical in nature and concluded that she preferred the s. 25 assessors’ conclusions that the claimant could not return to work to the opinions of the s. 44 assessors.