Category: Income Replacement Benefits

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 It was noted that the claimant’s licence had been revoked due to the blackouts.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.

Applicant v. Certas Home and Auto Insurance Company (16-001905)

The claimant sought entitlement to IRBs and various medical benefits. Regarding IRBs, Adjudicator Bickley held that the claimant had failed to prove a substantial inability beyond three months, and also held that the claimant had failed to provide financial records supporting a higher weekly IRB quantum. The adjudicator made an adverse inference due to the claimant’s failure to provide requested financial records. In terms of the medical benefits, Adjudicator Bickley held that the claimant’s non-attendance at two IEs barred her from seeking a chronic pain treatment plan. Two other assessments were approved as being reasonable and necessary. The remaining treatment plans were denied. Finally, Adjudicator Bickley allowed the claimant to add a special award to her claim, but denied entitlement to such an award.

F.F. v. Aviva Canada (16-000941)

The claimant sought entitlement to income replacement benefits and was successful at the LAT. The insurer sought reconsideration and pled the claimant did not comply with a section 33 information request and it is therefore not required to pay for benefits during the period of non-compliance. Executive Chair Linda Lamoureux determined that the information requested was reasonable and the claimant did not provide a reasonable explanation for failing to comply with the request. As a result, the LAT decision was varied to deny the payment of IRBs during the period of non-compliance.