Category: Income Replacement Benefits

Elkhidir v. Intact Insurance Company (20-011803/AABS)

The claimant was injured in a motor vehicle accident and applied to the LAT for IRBs. Section 36(2) of the Schedule mandates that an applicant seeking IRBs shall submit a completed OCF-3 with their application for benefits, and that there can be no entitlement to IRBs for any period before the OCF-3 is submitted. A plain reading of the section led Vice-Chair Todd to conclude that the claimant was not entitled to IRBs prior to his submission of the OCF-3. Vice-Chair Todd further highlighted that the claimant failed to comply with the time provisions outlined in s. 5(1) and s. 32(1) of the Schedule and that this was fatal to his claim as it prevented the insurer from assessing entitlement for the benefit contemporaneously with the period claimed.

Nagalingam v. Economical Insurance Company (20-006884)

The claimant sought entitlement to pre-104 week and post-104 week IRBs. The insurer denied the claimant’s entitlement and argued that section 33 barred the claim as the claimant failed to provide information relating to his place of residence, which was relevant to a potential section 31 exclusion. Adjudicator Maleki-Yazdi found that the claimant did not meet the medical test for IRBs during either the pre-104 week or post-104 week period. Even if the claimant had met either test, the adjudicator held that it was reasonable for the insurer to request information relating to the claimant’s place of residence as the policy was issued to an address other than the address on the OCF-1 and OCF-3. The claimant’s refusal to provide the information was not reasonable. Additionally, the claimant failed to comply with section 33 requests for medical records, despite the insurer agreeing to pay for the cost of obtaining the requested records. The claimant argued that he had not received the section 33 requests. The adjudicator rejected the claimant’s explanation for non-compliance, as the letters were also sent to his counsel, and therefore deemed to have been received by him.

Thompson v. Aviva Insurance Company (20-005734)

The claimant’s spouse was involved in an accident in 2015. In 2019, the claimant applied for accident benefits, including IRBs. The insurer denied the claim on the grounds that the application was submitted late. The claimant applied to the LAT seeking entitlement to IRBs, and two treatment plans related to psychological treatment. Adjudicator Norris granted the claimant entitlement to IRBs for an eight month period between the submission of her application and the insurer’s denial, which was compelled by section 36. The remainder of the claim for IRBs was denied on the basis that the claimant failed to apply for IRBs within 104 weeks of the accident. Because the claimant applied almost four years after the accident, she could not prove entitlement to pre-104 week IRBs, and could therefore not claim post-104 week IRBs.

Ni v. Aviva Insurance Company of Canada (20-008774)

The claimant requested a special award for IRBs due to an unreasonable delay by the insurer. As of January 16, 2020, the claimant had provided her OCF-1, OCF-2, OCF-3 and OCF-10 to the insurer. On January 30, 2020, the insurer sent a section 33 request for further income-related documents. The insured made repeated section 33 requests for these documents, claiming that they were required for a determination of the claimant’s entitlement to IRBs. The claimant provided most of the requested documents by March 6, 2020. On April 13, 2020, the insurer suspended the claimant’s IRBs for non-compliance. On January 26, 2021, the claimant sent a letter to the insurer advising that she had not received any IRBs since the accident occurred on December 23, 2019. She further advised that the outstanding documents requested by the insurer were not required to determine her eligibility to IRBs. In its response, the insurer acknowledged the claimant’s position as it advised that certain documents that had been previously requested were no longer necessary. On August 9, 2021, the insurer advised the claimant that IRBs in the amount of $23,314.29 and interest in the amount of $1,579.20 had been paid to the claimant for the period from December 23, 2019 to February 9, 2021. The insurer continued to pay IRBs to the claimant from August 9, 2021 and onwards. Vice-Chair Brooks found that the insurer’s conduct satisfied the test for unreasonably delaying payments as it was “imprudent, stubborn and inflexible”. Vice-Chair Brooks found that the claimant had provided all documents necessary for the determination of her eligibility to IRBs as of January 16, 2020. Vice-Chair Brooks awarded the claimant a special award of $11,652.14, which constituted 50 percent of the IRBs paid. She noted that this was the highest rate permitted under the SABS. She found that the insured’s actions fell on the “furthest end of the scale” as it had refused to pay the claimant IRBs for over a year due to alleged non-compliance, when the claimant had already provided all the required documents as of January 2020.

Traders General Insurance Company v. Rumball (2022 ONSC 7215)

Both the insurer and the claimant appealed the Tribunal’s decision that the claimant was entitled to IRBs up to the 104 week mark. The insurer appealed the finding that the limitation period did not bar the IRB claim because the denial was not clear and unequivocal. The claimant appealed the finding that she was not entitled to post-104 week IRBs. The Court dismissed both appeals. Regarding the limitation period, the Court noted that the matter was one of mixed fact and law. The Tribunal’s finding that the denial was not clear and unequivocal was not open to appeal as it was not an error of law. Regarding the post-104 week IRBs claim, the Court held that the only applicable disability test is the “complete inability” test in the SABS. The Court rejected the claimant’s argument that the standard described in Burtch v. Aviva (a test stating that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages), as it was not stated in the SABS. The Tribunal held that the claimant had reasonably suitable alternative employment available to her, and that she had some functional ability to work in the retail sector. As such, there were no reviewable legal errors for the Court to address.

Sgambelluri v. Aviva Insurance Company (20-009937)

The claimant applied to the LAT seeking entitlement to IRBs and HK expenses. Vice Chair Johal dismissed the claims. Regarding HK expenses, the claimant did not put contemporaneous evidence before the Tribunal proving an impairment with housekeeping activities. The reports the claimant relied upon were all from three years or more post-accident, and did not provide any objective testing relating to housekeeping activities. Regarding IRBs, the claimant again failed to submit contemporaneous evidence proving an impairment preventing her from returning to work. All reports the claimant relied upon were from past the 104 week mark, and did not prove an impairment within the first 104 weeks after the accident.

Rosoli v. Aviva General Insurance (21-009076)

The claimant had previously filed a LAT Application in 2018 disputing IRBs and several treatment plans. The Application proceeded to a hearing and was dismissed. The claimant did not request a reconsideration of the decision nor did she pursue an appeal. On July 9, 2021, the claimant filed a second LAT Application disputing IRBs, the MIG and several treatment plans. The insurer argued that the claimant’s application for benefits was barred due to res judicata based on her prior LAT Application regarding the same accident, which was previously dismissed at a hearing. The insurer noted that while the disputed treatment plans for the current Application had different dates on them, they were for the exact same services that were addressed in the prior Decision. The insurer argued that res judicata would prevent the claimant from bringing multiple claims for the same relief simply by changing the grounds (or date) on which the claim was made. The claimant argued that the treatments plans were in fact new issues, and that medical evidence showed she required updated treatments as she had yet to reach maximal medical recovery and required additional treatment. Adjudicator Kaur opined that res judicata had been met. A review of the medical records indicated no additional evidence that would warrant avoiding the application of res judicata, in fact, the new records indicated that the claimant had reached maximal medical recovery and that no further treatment was warranted. Adjudicator Kaur dismissed the Application.

Nash v. Aviva General Insurance Company (2022 ONSC 6723)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The claimant argued that the Tribunal incorrectly applied the SABS, misinterpreted the IRB sections, misapprehended the evidence, and breached natural justice. The Court dismissed the appeal, holding that there were no errors of law committed by the Tribunal. The Tribunal’s decision to deny IRBs flowed from the findings of fact made by the adjudicator. The findings of fact were permissible in light of the evidence before the Tribunal, and the Court would not reweigh the evidence. The application of the SABS and the IRB test to the findings of fact was an issue of mixed fact and law, which was not appealable. The claimant failed to raise any issues of law upon which a reversible error had been made.

Mariyadas v. Wawanesa Mutual Insurance Company (19-011670)

The claimant applied to the LAT for entitlement to IRBs of $400 per week ongoing from the date of loss, a treatment plan for physical therapy, and a special award. The insurer agreed that the claimant met the medical test for IRBs, but disagreed on the quantum. The claimant nevertheless requested that the LAT order the insurer to pay IRBs on an ongoing basis. Adjudicator Johal held that she did not have jurisdiction to order the insurer to pay IRBs on an ongoing basis, as there was no dispute between the claimant and the insurer. She declined to follow FSCO cases which had made such orders. In terms of the IRB quantum, Adjudicator Johal accepted the insurer’s calculations. The claimant was self-employed as a 50 percent owner of a cleaning company with her husband. The claimant and insurer disagreed on how to treat post-accident subcontractor expenses. The claimant’s accountants attributed the full amount of subcontract expenses to the claimant. The insurer’s accountants attributed only 50 percent of the expenses. Adjudicator Johal rejected the claimant’s accountant’s report, as it relied on outdated FSCO cases and did not follow the recent decision in Surani v. Perth. Adjudicator Johal held that the post-accident expenses had to be apportioned in accordance with the claimant’s ownership of the company. The disputed treatment plan was awarded as physiotherapy provided ongoing pain relief. A special award was not granted. Adjudicator Johal held that it was reasonable for the insurer to request ongoing business records in accordance with its obligation to continuously adjust the claim.

Majerczyk v. Economical Mutual Insurance Company (20-004327)

The claimant applied to the LAT seeking CAT determination under criteria 7 and 8 and entitlement to post-104 IRBs, ACBs, and various medical benefits. Vice-Chair Johal found that the claimant was not catastrophically impaired and was not entitled to ACBs, assistive devices, the in-dispute psychology treatment, or occupational therapy treatment. The claimant was entitled to IRBs, medical marijuana, lidocaine injections, physiotherapy, and a psychology assessment. With regards to CAT determination, Adjudicator Johal stated that while it was clear the claimant suffered impairments as a result of the accident and had limitations and restrictions to her daily life, simply showing that she was restricted and limited is not sufficient to meet the CAT test under the SABS.