Category: Income Replacement Benefits

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.

L.F. v. Unifund Assurance Company (16-001020)

The claimant sought entitlement to IRBs and two treatment plans for a social emotional assessment and a functional abilities evaluation. The respondent initially paid weekly IRBs of $209.61. Payments were stopped when the claimant failed to attend three IEs in March and April 2016. After the claimant attended IEs in August 2016, the respondent denied IRBs entitlement based on the IE reports. Adjudicator Bickley concluded that as a result of the claimant’s psychological impairments, she was substantially unable to perform the essential tasks of her employment. Having found her entitled to IRBs, the Adjudicator determined that she was ineligible to receive IRBs between April 21, 2016 and July 18, 2016 due to her failure to provide a credible reason for her non-attendance at the March and April 2016 IEs. With respect to the disputed treatment plans, Adjudicator Bickley concluded that they were not reasonable and necessary. The proposed social emotional assessment was duplicative of the previously approved psychological assessment, and the claimant had submitted no evidence to support her position that the unpaid portion of the functional abilities evaluation was reasonable.

Applicant v. Royal Sun Alliance Insurance Company of Canada (16-000068)

The claimant sought ongoing IRBs following a motor vehicle accident. The claimant had been a tow truck driver prior to the accident, but had not returned to work. The insurer terminated the claimant’s entitlement to IRBs after eight months. Adjudicator Sapin concluded that the claimant continued to suffer a substantial inability to complete the essential tasks of his pre-accident employment as a tow truck driver. The adjudicator was critical of the insurer’s IE assessors for performing a cursory assessment of the claimant and failing to perform certain physical tests. She also found the claimant to be credible in terms of his recollection and self-reported impairments.

V.H.T. v. Certas Home and Auto Insurance Company (16-000874)

The claimant sought entitlement to IRBs and further medical benefits. A preliminary motion was first heard to address the admissibility of late documents. Adjudicator Sapin held that the late documents were admissible, that the insurer had sufficient time to review the new documents, and that the insurer should have requested an adjournment if it believed prejudice would result. In terms of the benefits in dispute, Adjudicator Sapin held that the claimant was entitled to post-104 week IRBs due to ongoing psychological issues, chronic pain, and inability to use his right hand. The medical benefit sought were not awarded because the claimant did not provide evidence that they were reasonable and necessary, or were not on a treatment plan.

S.B. v. Aviva General Insurance (16-004395)

The claimant sought entitlement to medical and income replacement benefits. The insurer asserted a MIG position. Adjudicator Derek concluded the claimant had not proven he had injuries to warrant removal from the MIG, nor had a pre-existing condition impeding recovery within the MIG. Regarding IRBs, the claimant only relied on his disability certificate. The insurer’s IE reports were seen as a more valid depiction of the claimant’s functionality and the claim was dismissed.

Applicant v. TD General Insurance Company (16-000608)

The claimant was involved in two motor vehicle accidents, and sought IRBs in relation to both accidents. Adjudicator Leslie held that the claimant had not provided evidence regarding the impairments preventing him from performing his work functions beyond the date the insurer had paid IRBs. Further, the claimant himself reported that he was not prevented from returning to work.

Applicant v. TD Home and Auto Insurance Company (16-000929)

The claimant sought reconsideration of the original adjudicator’s denial of further IRBs. Executive Chair Lamoureux denied the request for reconsideration and held that the adjudicator’s reasons were based on the medical evidence before the Tribunal, and the adjudicator was entitled to weigh the evidence as he saw fit.

Applicant v. TD Home and Auto Insurance Company (16-000929)

The claimant sought reconsideration of the original adjudicator’s denial of further IRBs. Executive Chair Lamoureux denied the request for reconsideration and held that the adjudicator’s reasons were based on the medical evidence before the Tribunal, and the adjudicator was entitled to weigh the evidence as he saw fit.

Applicant v. Aviva Insurance Company (16-001144)

The original adjudicator had awarded IRBs up to the 104 week mark, which was a future date; the weekly quantum of IRBs awarded was not analysed in the decision. The insurer appealed the adjudicator’s order related to the period and quantum of IRBs. Executive Chair Lamoureux accepted the insurer’s arguments and held that the order should be varied to remove the specified future date, and ordered a rehearing on the issue of IRB quantum.

M.K. v. Dumfries Mutual Insurance Company (16-000501)

The claimant sought IRBs and removal from the MIG. Adjudicator Theoharis rejected the claimant’s case. She held that the claimant did not suffer impairments that would entitle her to IRBs or removal from the MIG. In particular, Adjudicator Theoharis relied upon surveillance showing the claimant engaging in multiple activities she said she could not do. Adjudicator Theoharis placed no weight on the s. 25 psychological report, as it took the claimant’s self-reporting at her own word. There was also no mention of psychological difficulties in the claimant’s family doctor’s notes.