Category: Income Replacement Benefits

A.S. v. Economical Mutual Insurance Company (16-003197)

The claimant was entitled to IRBs. The insurer argued that it was entitled to deduct the claimant’s post-accident income from his personal business. The claimant argued that he did not “earn” the income from his business because he was not actively engaged in the business. Adjudicator Watt concluded that the claimant was actively involved in the operations of his business, even though he did hire additional help. The adjudicator also held that the SABS did not make a distinction between “earned income” and “passive income;” any net income earned post-accident was to be deducted from the claimant’s weekly IRB. Because the claimant’s post-accident income was over $120,000, his IRB entitlement was $0 per week.

Applicant v. Unifund Assurance Company (16-003709)

The claimant sought entitlement to IRBs and ACBs. The insurer sought repayment of IRBs paid for a period that the claimant was working. Adjudicator Bickley denied entitlement to both IRBs and ACBs. She held that the claimant’s return to work shortly after the accident and frequency gym attendances suggested that the claimant did not suffer a substantial inability to engage in her employment, and that she did not require assistance with personal care. Adjudicator Bickley also held that the claimed attendant care expenses were not incurred because the claimant’s daughter had not submitted any evidence of an economic loss. In terms of the claim for repayment, Adjudicator Bickley allowed the repayment issue to be added as an issue at the beginning of the hearing. The claimant’s representative acknowledged an overpayment for the period which the claimant had returned to work after the accident. The claimant was ordered to repay $2,984.59 in IRBs plus interest.

Applicant v. State Farm Insurance Company (16-004031)

The claimant sought entitlement to income replacement benefits as well as psychological treatment plans. The insurer denied IRBs and asserted the claimant’s inability to resume working was due to a pre-existing injury and not an MVA-related impairment. The psychological treatment was denied by the insurer as being not reasonable and necessary. Adjudicator Deborah Neilson reviewed the medical evidence and noted that neither party tendered evidence from medical practitioners that addressed the claimant’s pre-existing conditions. Moreover, the claimant did not testify. Accordingly, it was held that the claimant failed to establish her impairments were directly as a result of the accident and prevented her from working. In the alternative, Adjudicator Neilson determined that the claimant failed to establish that she was substantially unable to resume working. As it pertained to the claim for psychological treatment, Adjudicator Neilson found that the treatment plan was necessary to address the claimant’s issues; however, based on the fees listed by the provider the plan was deemed unreasonable and therefore not payable.

Applicant v. Wawanesa Mutual Insurance Company (17-002337)

The claimant sought entitlement to a number of medical benefits, as well as income replacement and attendant care benefits. The insurer denied entitlement and also asserted a MIG position. Adjudicator Christopher Ferguson reviewed the medical evidence and determined that no compelling evidence was tendered by the claimant to support entitlement to any of the benefits claimed. The MIG was said to govern the claimant’s impairments and the matter dismissed.

J.A. v. Aviva Insurance (17-001494)

The claimant sought entitlement to IRBs and attendant care benefits. Adjudicator Hamud concluded that the claimant was entitled to IRBs, as he suffered a substantial inability to perform the essential tasks of his employment. An essential task of the claimant’s employment as a construction worker required him to lift over 50 pounds, but the claimant was only able to lift 10 pounds. The claimant was also entitled to attendant care benefits, but in the amount indicated on the Form 1 rather than on the invoices submitted. The invoices were based on rates which exceeded the maximum rates noted in the Guideline, and were thus inappropriate.

Applicant v. Certas Home and Auto Insurance Company (17-001090)

The claimant disputed his entitlement to income replacement benefits (IRBs). The insurer sought repayment for overpayment of IRBs in the amount of $16,000. Adjudicator Bickley dismissed the claimant’s claim for IRBs and the insurer’s repayment request. Adjudicator Bickley dismissed the claimant’s special award claim and the insurer’s cost award claim. Adjudicator Bickley dismissed the claimant’s dispute for IRBs on the basis that the claimant returned to her full-time pre-accident employment after the accident and then went to school to become a PSW. Adjudicator Bickley concluded that the claimant’s ability to return to work and then attend school and become a PSW persuaded her (Adjudicator Bickley) that the claimant did not meet the pre-104 week IRB test. With respect to the insurer’s IRB repayment request, Adjudicator Bickley dismissed the insurer’s dispute on the basis that the insurer paid the claimant IRBs even though it was aware of issues with the claimant’s IRB eligibility and therefore, concluded that the insurer did not pay the claimant in error.

B.T. v. St. Paul Fire and Marine Insurance Company(17-000086)

The claimant sought entitlement to IRBs and costs of examinations. As a preliminary issue, the respondent argued that the claimant was barred from appealing her claims as she had not followed the procedures for claiming accident benefits under section 32 of the SABS. The claimant did not file a claim for accident benefits until July 2016, two and a half years after the subject accident. No explanation for the delay was provided. Adjudicator Ferguson concluded that the respondent was not required to pay the claimant’s claim for IRBs, as she did not comply with the prescribed procedures for claiming accident benefits. However, the amounts incurred with respect to the costs of examinations were payable pursuant to section 38(11). The claimant filed two assessment plans in June 2016 which the respondent did not deny.

T.T. v. Certas Direct Insurance Company (16-003055)

The claimant sought entitlement to IRBs and a number of treatment plans. Adjudicator Jeffrey Shapiro, on review of the medical evidence, as well as surveillance and employment records, noted that the claimant’s self-reporting was unreliable and had “failed to timely, honestly and accurately disclose his multiple actual returns to work and his ability to work.” As it pertained to the treatment plans sought, Adjudicator Shapiro concluded the claimant had failed to establish removal from the MIG was warranted. All claims were dismissed.

Aviva Insurance Canada v. “Mr.P” (16-004349)

The claimant applied for and received various accident benefits from Aviva, including $14,514 in IRBs. Aviva subsequently voided the policy because the claimant failed to disclose that his partner, who had a poor driving record, had moved in with him one year prior to the accident. Aviva applied for an order requiring the claimant to repay the $14,514 in IRBs and to reimburse for the $5,537 expended on IEs to address the claimant’s entitlement to IRBs. Adjudicator Shapiro concluded that Aviva was entitled to repayment of the $14,514 in IRB, but not to reimbursement of the $5,537 related to the IEs. He found that, on the balance of probabilities, the claimant intentionally failed to disclose materials information, and Aviva did not reasonably know of the information through other means. However, regardless of whether there is an intentional failure to disclose, IE expenses are not subject to repayment under section 52.

Applicant v. State Farm Insurance (17-000018)

The claimant disputed her entitlement to IRBs. Adjudicator Paluch dismissed the claimant’s application finding that the claimant was not entitled to IRBs for either the pre- or post-104 week period. Adjudicator Paluch also concluded that the claimant did not comply with s. 33 and did not provide a reasonable explanation for her delay in providing documentation for the claimed period. Adjudicator Paluch noted that he found the IE assessors’ opinions persuasive. In particular, Adjudicator Paluch noted that the FAE IE report indicated to him that the claimant could tolerate light to medium physical demands and that the claimant was therefore able to return to her pre-accident employment as the owner and operator of a restaurant. With respect to the insurer’s s. 33 suspension, even though Adjudicator Paluch did not find the claimant entitled to IRBs, he would have found the claimant not entitled to IRBs for the period of 2.5 years in any event due to her non-compliance with s. 33 as the claimant failed to provide the insurer financial documentation necessary to calculate her IRB quantum.