Category: Income Replacement Benefits

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.

Applicant v TD General Insurance Company (16-001308)

The claimant sought entitlement to IRBs, interest, and expenses. The Tribunal was also asked to determine whether the applicant was statute-barred from proceeding with his application. Adjudicator Gottfried held that the applicant was not statue-barred, as he brought his application within the 90-day time limit after receipt of a FSCO mediation report. Adjudicator Gottfried further determined that the applicant was not credible, and that he was not substantially unable to perform the essential tasks of his employment; therefore, he was not entitled to IRBs or interests. As neither party addressed the issue, Adjudicator Gottfried declined to make an order regarding expenses.

D.D.D. v. RBC Insurance Company (16-000097)

The claimant asked for reconsideration of the denial of IRBs. Executive Chair Lamoureux held that the adjudicator’s factual findings were not subject to review, and that the evidence that the claimant had returned to work and was let off due to work shortages supported the conclusion that the claimant was not entitled to IRBs.

D.D.D. v. RBC Insurance Company (16-000097)

The claimant asked for reconsideration of the denial of IRBs. Executive Chair Lamoureux held that the adjudicator’s factual findings were not subject to review, and that the evidence that the claimant had returned to work and was let off due to work shortages supported the conclusion that the claimant was not entitled to IRBs.

Applicant v. Jevco Insurance Company (16-002000)

The claimant was involved in a serious accident and had sustained ongoing physical, psychological, and cognitive impairments. He had returned to doing some work on a part-time basis, but was unable to engage in full time work or retraining. Adjudicator Truong held that the claimant was entitled to post 104-week IRBs based on a holistic analysis of the claimant’s post-accident abilities and impairments. It was also noted that the claimant had been approved for CPP Disability Benefits. In terms of the catastrophic impairment, Adjudicator Truong determined that the claimant suffered a combined 56 percent whole person impairment, which qualified as a catastrophic impairment. The difference of opinion between the parties had been based on whether it was appropriate to combine the impairment rating for mental status impairment rating under Chapter 4 of the AMA Guides with the mental and behavioural impairment rating from Chapter 14 of the AMA Guides, or whether doing so amounted to “overcounting”. Adjudicator Truong held that it was appropriate to combine the ratings from both Chapters 4 and 14 in this case, because the claimant had suffered a cerebral impairment (which was counted under Chapter 4), and a psychological impairment (which was counted under Chapter 14). In terms of the medical benefits claimed, Adjudicator Truong held that the claimant had not submitted sufficient evidence to prove that the claims were reasonable and necessary.

D.T. v. Wawanesa Mutual Insurance Company (16-000266)

The claimant sought reconsideration of the Tribunal’s decision to deny medical benefits above MIG limits and IRBs. The Tribunal had denied the claimant’s entitlement to these benefits based on its review of the available medical evidence. The claimant made multiple arguments: first, that the Tribunal did not consider evidence indicating she suffered from a pre-existing condition; second, that the Tribunal considered improper surveillance footage; and, lastly, that the Tribunal erred in refusing her requests for an oral hearing and for the hearing to be recorded. Executive Chair Lamoureux denied the reconsideration request. She held that the Tribunal had properly reviewed the entire medical record when it determined that the claimant fell within the MIG. She noted that claimant’s counsel had provided the Tribunal with little guidance regarding the evidentiary record, and had failed in its duty to best present the claimant’s position. She further held that the Tribunal had properly addressed the claimant’s objections to the surveillance footage, and any new concerns raised in the reconsideration request were not permissible. Moreover, Executive Chair Lamoureux held that the claimant’s rights to procedural fairness were not affected by the Tribunal’s decisions to deny her requests for an oral hearing and for the hearing to be recorded.

D.T. v. Wawanesa Mutual Insurance Company (16-000266)

The claimant sought reconsideration of the Tribunal’s decision to deny medical benefits above MIG limits and IRBs. The Tribunal had denied the claimant’s entitlement to these benefits based on its review of the available medical evidence. The claimant made multiple arguments: first, that the Tribunal did not consider evidence indicating she suffered from a pre-existing condition; second, that the Tribunal considered improper surveillance footage; and, lastly, that the Tribunal erred in refusing her requests for an oral hearing and for the hearing to be recorded. Executive Chair Lamoureux denied the reconsideration request. She held that the Tribunal had properly reviewed the entire medical record when it determined that the claimant fell within the MIG. She noted that claimant’s counsel had provided the Tribunal with little guidance regarding the evidentiary record, and had failed in its duty to best present the claimant’s position. She further held that the Tribunal had properly addressed the claimant’s objections to the surveillance footage, and any new concerns raised in the reconsideration request were not permissible. Moreover, Executive Chair Lamoureux held that the claimant’s rights to procedural fairness were not affected by the Tribunal’s decisions to deny her requests for an oral hearing and for the hearing to be recorded.

L.K. v. The Guarantee Company of North America (16-003577)

The claimant’s entitlement to income replacement benefits had been suspended for about six months due to her failure to provide a copy of her CPP file, which had been requested by the insurer under section 33 of the SABS. Upon receipt of the CPP, the insurer reinstated income replacement benefits, but refused to pay for the period the claimant was in section 33 non-compliance. The claimant applied to the LAT for payment of income replacement benefits over that period. Adjudicator Gemma Harmison ruled the request for the CPP file was a reasonable request under section 33 and that the claimant did not provide a reasonable explanation for her delay to provide the CPP file.

B.H. v. Belair Direct Insurance (16-002779)

Shortly before the hearing, the insurer accepted that the claimant suffered a catastrophic impairment, and was entitled to IRBs. The only remaining issues were the claimant’s entitlement to attendant care benefits, and a special award. In terms of the attendant care claim, the insurer accepted that the claimant was medically entitled to assistance; the dispute was whether the service provider was a professional under the “incurred” definition. The service provider was not working as a PSW at the time of the accident, but had started working after the claimant’s accident, and had worked for three weeks providing services to other individuals. Adjudicators Treksler and Hines held that the wording “but for the accident” in the “incurred” definition did not require the professional service provider to have been working as a professional at the time of the accident. Instead the wording “but for the accident” required an inquiry as to whether the professional service provider was working in that role prior to the date of the provision of services. The professional service provider had worked for three week with other individual prior to working with the claimant, and the adjudicators therefore concluded that the “incurred” definition for a professional service provider was satisfied. The adjudicator also issued a special award of $3,693.60 in relation to IRBs, on the basis that the insurer had requested too much information and refused to pay IRBs despite sufficient information to calculate the claimant’s weekly entitlement.