Category: Income Replacement Benefits

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.

Applicant v. Aviva Insurance Company (17-001173)

The claimant sought entitlement to IRBs and medical benefits. The insurer asserted the claimant’s impairments were as a result of an intervening factor, namely a slip and fall, rather than the MVA. Adjudicator Catherine Bickley found the claimant to be a credible witness and attributed her impairments to the MVA. It was also noted that the claimant was receiving CPP disability benefits. The record indicated that she attempted to work two different jobs post-MVA but was unable to continue due to pain. On review of the medical evidence, Adjudicator Bickley concluded that the claimant had met the disability test for income replacement benefits and awarded the benefits ongoing, with interest. However, little evidence was tendered to show entitlement to the claimed medical benefits, and therefore the treatment plans were deemed not payable.

Applicant v. Economical Mutual Insurance Company (17-000846)

The claimant sought entitlement to medical, attendance care, and income replacement benefits. The insurer asserted a MIG position. Adjudicator Nicole Treksler, on review of the evidence, determined that the claimant’s injuries were governed by the MIG and that the claimant failed to establish a substantial inability to perform the essential tasks of employment in the face of evidence that the claimant returned to work. Since the MIG was said to govern, the claimant’s attendant care claim was dismissed summarily pursuant to section 14.

Applicant v. Unica Insurance Inc. (16-002234)

The claimant sought entitlement to income replacement benefits as well as a catastrophic impairment designation. The claimant testified that following the accident she had a blackout while a passenger in another car. She indicated that the blackouts prevented her from working or resuming school studies. The insurer asserted that the blackouts were not as a result of the MVA and that the claimant did not meet the test for income replacement benefits. Adjudicators Deborah Neilson and Nicole Treksler found the claimant credible. It was noted that the claimant’s licence had been revoked due to the blackouts. On review of the medical evidence it was highlighted that the claimant made submissions that the IE assessor of the insurer did not establish a rapport with the claimant due to cultural and gender differences. It was also noted that the insurer’s expert admitted that cultural and gender differences can impact the validity of testing. On review, the claimant’s medical evidence was preferred and it was determined that the claimant’s blackouts were as a result of the MVA stemming from PTSD. As a result, she suffered a Class 4 impairment in two spheres of functionality and was deemed catastrophically impaired. The evidence of the claimant’s medical expert regarding the WPI threshold of 55% being reached by virtue of a combination of the high-end of ranges, however, was rejected. Additionally, since the blackouts, which were deemed a result of the MVA, had resulted in the claimant’s licence being revoked, and the fact that driving was considered an essential task of her employment as a babysitter, it was determined that the claimant met the test for income replacement benefits. However, because the claimant did not tender evidence regarding the availability of employment that could accommodate her impairments nor demonstrate efforts to find subsequent suitable employment, the claimant was not entitled to post-104 week income replacement benefits.

Applicant v. Aviva Insurance Canada (17-001822)

The claimant sought entitlement to IRBs and a chronic pain assessment. Adjudicator Hines accepted that the claimant suffered a substantial inability to perform the essential tasks of her pre-accident employment as a sales representative. She preferred the medical opinions of the claimant’s assessors over the insurer’s assessors due to inconsistencies and lack of analysis in the IE reports. The adjudicator was also unswayed by surveillance evidence showing the claimant working at a restaurant, reasoning that the claimant’s pre-accident work was dissimilar enough from the work at the restaurant. The insurer was entitled to deduct any post-accident earnings from the claimant’s IRB. Finally, the claimed chronic pain assessment was awarded as being reasonable and necessary.

P.M. v. RBC General Insurance Company (16-001611)

The claimant suffered a finger fracture in the accident. He was new to Canada and did not understand the accident benefits system. He first applied for EI, which was denied; he appealed and lost again. He first applied for accident benefits eight months after the date of loss. The insurer argued that the claimant did not have a reasonable explanation for his delay and could not claim accident benefits. Adjudicator Gottfried followed FSCO case law regarding late applications and concluded that the claimant did have a reasonable explanation for his late application, and that he could claim accident benefits. He was found entitled to IRBs based on his injuries from the date of his first OCF-3 up to the 104 week mark. IRBs beyond that date were denied. Various medical benefits were paid by the insurer. Adjudicator Gottfried held that claims for HST on proposed medical benefits were also payable.

G.K. v. Unifund Assurance Company (17-001274)

The claimant sought entitlement to income replacement benefits. The insurer agreed benefits were payable but asserted that a deduction of gross short and long term disability benefits was needed to calculate the appropriate quantum. The claimant stated that the deduction involved the net of short and long term disability payments. Adjudicator Ian Maedel determined that the gross of STD and LTD benefits was deductible. The IRB quantum was ordered to reflect a deduction of gross STD and LTD benefits.

H.T. v. TD General Insurance Company (16-000608)

The claimant sought reconsideration of a Tribunal decision that dismissed all claims. Executive Chair Linda Lamoureux reviewed the submissions and concluded that no significant error of fact or law took place and noted that it was open to the Tribunal to hold that benefits were suspended due to non-attendance at an EUO. Additionally, no procedural fairness or issues of natural justice warranted disturbing the Tribunal decision

Applicant v. Aviva Insurance (16-001990)

The claimant sought entitlement to income replacement benefits and a number of medical treatment plans. The insurer asserted a MIG position. On review of the medical evidence, Adjudicator Paul Gosio determined the claimant’s injuries were minor and governed by the MIG. The treatment plans claimed were dismissed. As it pertained to the IRB claim, Adjudicator Gosio determined that the claimant failed to meet the onus to show a substantial inability to perform the essential tasks of employment. The claimant’s evidence was criticized for failing to address the specific essential employment tasks of the claimant.