Category: Income Replacement Benefits

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.

M.R. v. State Farm Mutual Automobile Insurance Company (16-003757)

The claimant sought entitlement to post-104 week IRBs. Adjudicator Paluch denied the claim. He noted that neither the claimant’s expert nor the family physician had provided an opinion on the post-104 week “complete inability” test, and that the insurer’s experts provided reasonable alternative vocations the claimant could engage in.

Applicant v. Aviva Insurance (17-001023)

The claimant sought entitlement to IRBs and various medical benefits. Adjudicator Sewrattan held that the claimant did not suffer a substantial inability to engage in his pre-accident work (he admitted to being able to drive, which was a major component of his job). He also held that the claimant was not entitled to proposed assessment or psychological treatment, but that two treatment plans for physical therapy were reasonable and necessary. The insurer was denied costs despite the claimant providing materials late, ignoring the page limit on written submissions, refusing to provide relevant records, and failing to abide by the Tribunal’s timelines.

Applicant v. Pafco Insurance (16-003683)

The claimant sought entitlement to income replacement benefits. The insurer denied the benefit based on a number of IE reports. It was noted that the insurer continued to pay IRBs beyond the denial letter. The insurer admitted the payments were due to inadvertence and sought repayment. Adjudicator Robert Watt reviewed the medical evidence and concluded the claimant had not met the disability test for income replacement benefits. The claim for repayment was deemed not properly before the Tribunal and the entire application was dismissed. Repayment could be raised in a fresh application, subject to limitation provisions.

Melo v. Northbridge Personal Insurance Corporation (2017 ONSC 5885)

The claimant appealed Adjudicator Sewrattan’s denial of further IRBs to the Divisional Court. The Court upheld the decision, writing that the standard of review was reasonableness, and that Adjudicator Sewrattan had used the proper test to consider entitlement to IRBs, applied the proper standard of proof, and grounded his reasons in the evidence before him.

N.N. v. Allstate Insurance Company (17-000006)

The claimant sought entitlement to IRBs and three medical benefits. Adjudicator Hans concluded that as a result of the claimant’s physical impairments, he was substantially unable to perform the essential tasks of his employment as a marble shop worker. The Adjudicator was not persuaded by the respondent’s argument that the claimant was able to work as a taxi driver, as the analysis must focus on the claimant’s pre-accident employment as a marble shop worker. The medical benefits for physiotherapy and assistive devices were found not reasonable and necessary.

T.B. v. Security National Insurance Co. (16-002570)

The claimant sought entitlement to income replacement and housekeeping benefits. At the outside of the hearing the parties advised Adjudicator Gregory Flude that the matter had settled. Accordingly, Adjudicator Flude closed the file.

J.U. v. Co-operators General Insurance Company (17-000713)

Both the insurer and claimant agreed the claimant was entitled to income replacement benefits; at issue was quantum. The claimant did not provide alternative calculations, instead asserted consumer protection to avoid financial hardship. Adjudicator Therese Reilly applied the formula provided in section 4(2) and determined the insurer’s calculations were correct.

A.G. v. Certas Home and Auto Insurance Company (17-001475)

The claimant was involved in two separate motor vehicle accidents. He sought a determination that he was entitled to IRBs under the 1996 SABS for the first accident, and under the 2010 SABS for the second accident. The respondent argued that the claimant was prevented from making the LAT applications due to expiry of the two year limitation period. Adjudicator Sewrattan agreed with the respondent. The claimant was properly advised of the respondent’s refusal to provide an IRB, and failed to file an application within two years of the refusal. The Adjudicator declined to exercise his power under section 7 to grant an extension of the limitation period.

Applicant v. TD General Insurance Company (16-001308)

The claimant sought entitlement to IRBs beyond the date of termination. The insurer argued that the claimant failed to apply to the LAT before the limitation period expired. Adjudicator Gottfried rejected the insurer’s submissions and held that the claimant applied to the LAT within 90 days after FSCO Mediator’s Report. However, she denied the claimant any further IRBs. She held that the claimant’s credibility was suspect, and that he had returned to work in some capacity following the accident up until he was injured in a subsequent accident. She also accepted the opinions of the IE assessors that the claimant did not suffer a substantial inability to perform his pre-accident employment.