Category: Income Replacement Benefits

O’connor v. Aviva General Insurance Company (19-006131)

The claimant brought an application seeking entitlement to IRBs from December 16, 2017 to May 2018. The date of loss was December 9, 2017. She testified that she had returned to part-time work in January 2018 and transitioned to full-time work in April or May 2018. However, the insurer identified two IE reports in which the claimant had stated that she had returned to full-time employment in January 2018. In response to her conflicting claims, the insurer had requested the claimant’s paystubs and an OCF-2 in June 2018, and further requested in a letter dated October 23, 2018, that the claimant confirm the date that she had returned to work. As the claimant had not produced any income records that could confirm her post-accident income, the insurer argued that the LAT should rule that the claimant was not entitled to any IRBs for the period being claimed. Adjudicator Neilson found that she could not deny IRBs to the claimant under s. 33(6) for a failure to provide income information, because per s. 36(5), an insurer was required to pay IRBs withheld once the information sought was received, as long as a reasonable explanation was provided for the delay. However, Adjudicator Neilson stated that she was unable to make a determination on the claimant’s entitlement to IRBs until the claimant provided the income documents requested and provided reasons for the delay.

G.P. v. Wawanesa Mutual Insurance Company (18-010583)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, the cost of CAT assessments, and various medical benefits. Vice Chair Lester found that the claimant suffered a catastrophic impairment due to Class 4 Marked Impairments in both adaptation, and concentration, persistence, and pace. The claimant suffered from chronic pain as a result of a minor accident, which deteriorated into somatic symptom disorder with predominant pain and major depressive disorder. The claimant suffered from panic attacks once to twice per week. She was unable to deal with stressful circumstances, had not returned to work as a PSW, and became emotional and overwhelmed by minor things. The claimant was also found to meet the post-104 week IRB test. The only jobs the claimant was suited for were PSW work and an office manager role. The insurer did not have any IEs addressing post-104 week IRBs because it had terminated IRBs within the first 104 weeks. Notably, the insurer’s CAT assessments noted Class 3 Moderate Impairments in social functioning, which was relevant for the claimant’s ability to communicate effectively and ability to get along with others, and found a Class 3 Moderate Impairment in concentration, persistence, and pace, which was relevant to the claimant’s ability to sustain focused attention in a work setting. All of these conclusions supported the determination that the claimant suffered a complete inability to engage in work for which she was suited. The $26,971.50 for CAT assessments, $13,566.81 for a chronic pain program, $2,200 for a chronic pain assessment, and $1,808 for an FAE were awarded due to the insurer’s failure to comply with section 38(8). The denials did not provide adequate medical reasons for the denial, and referred the claimant to read other documents. Vice Chair Lester was critical of the insurer’s reason that something was “excessive” without providing any detail. Finally, Vice Chair Lester granted a special award of 30 percent on the awarded IRBs and treatment plans based on the insurer’s decision to “blindly follow” the IE assessor opinions without considering other evidence. The claimant suffered financial hardships as a result of the denials, including the need to apply for OW, borrow money from her family, and cut back on her diet.

Tanner v. Certas Direct (21-000564)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, and payment of various medical benefits including partially approved CAT assessments. Adjudicator Reilly denied all claims and dismissed the application. With respect to the catastrophic impairment, Adjudicator Reilly found a maximum combined WPI of 32 percent. She found the claimant’s assessors attributed excessive impairment percentages. She found no evidence of right shoulder impairment and found lumbar spine impairment rated too high. She found the claimant’s left wrist and shoulder impairments ought to have been combined before arriving at the total WPI, rather than rating each separately. She found the rating of 18 percent WPI for grip strength to be questionable as OT and FAE assessments found normal grip strength. In terms of neurological ratings, Adjudicator Reilly found no evidence to support a rating for sexual dysfunction or hearing, and the rating for disturbances of consciousness and awareness ought to have been deferred to a psychiatrist. She found a total of 32 percent WPI for orthopaedic and neurological impairment, which did not meet Criterion 6. In terms of mental or behavioural impairment, Adjudicator Reilly did not accept the claimant’s expert’s rating of 20 percent WPI, as the facts described by the assessor were not supported by the evidence (i.e. ability to travel, ability to drive, ability to work part-time). Adjudicator Reilly preferred a maximum WPI of 10 percent for mental and behavioural impairment based on the IE assessor’s opinion. The combined physical and mental impairment did not exceed 55 percent, and the catastrophic impairment designation was dismissed. Adjudicator Reilly concluded that the claimant did not meet the post-104 week IRB test. The claimant had returned to work in a part-time fashion on multiple occasions after the accident. Surveillance showed him with greater physical abilities than reported to his assessors. The claimant’s job was terminated in 2021 because he did not want to return to the office full-time, and the management dismissed him. The claim for further CAT assessments was dismissed, as the claimant did not advance evidence to indicate why the denied amounts were reasonable and necessary. The claim for assistive devices was dismissed because they were not submitted on OCF-18s, and the claimant had exhausted his medical benefits limits.

Katsaros v TD Insurance Meloche Monnex (20-010657)

A preliminary issue hearing was held to determine whether the claimant’s application for IRBs was statute-barred per the limitation period. The claimant was involved in a motor vehicle accident on October 21, 2016 and was able to return to work within a week. Almost a year later, the claimant stopped working and began receiving short-term disability benefits from his employer. Two years later, the claimant submitted another OCF-3 indicating that he now suffered a substantial inability to carry out the essential tasks of his pre-accident employment. The insurer argued that the claimant failed to properly apply for IRBs as he did not submit an OCF-3 establishing a substantial inability within 104 weeks of the accident as required by the SABS. Vice-Chair McGee disagreed with the insurer, noting that the claimant had submitted an OCF-3 within the prescribed time. The requirement is for a completed OCF-3 to be filed. It is not necessary for the form to positively indicate that the claimant has a substantial inability, submission of the form itself will allow the window to be left open to a future income replacement benefit claim.

Rao v. Wawanesa Mutual Insurance Co. (20-001654)

The claimant applied to the LAT seeking CAT determination under Criteria 8 and entitlement to post-104 IRBs and various medical/rehabilitation benefits. Causation was an issue at the hearing. The subject motor vehicle accident occurred on April 4, 2016. At the time of the subject accident, the claimant was still recovering from an incident in August 2015, which left her with a concussion and unable to work for 8 months. The subject accident occurred while the claimant was on her way to work for the first time since August 2015. The “but for” test was applied to the issue of causation. Vice-Chair Shapiro found that while the subject rear-end collision was light, it did affect the claimant, stating “while there is a dispute of what the actual physical impact the accident had on her brain and cognitive function, I accept that it was an emotionally traumatic event.” Vice-Chair Shapiro preferred the insurer’s CAT opinions, finding that the claimant’s CAT report lacked meaningful validity testing and was generally inconsistent with the records of treating practitioners and evidence of functional abilities. Vice-Chair Shapiro found that the claimant likely sustained a mild second concussion in the subject accident, which resolved on its own. The testimony of the claimant’s treating neurologist was given less weight as she was unaware of the subject accident until she was summonsed to be a witness at a hearing, and therefore her testimony about the accident causing the claimant’s current complaints was inconsistent with her medical notes. The claimant was found not to be CAT and was not entitled to post-104 IRBs. She was entitled to driver’s therapy, plus interest if incurred, but not to the other medical benefits in dispute.

Co-Operators General Insurance Company v. Branden (2022 ONSC 2473)

The insurer appealed the LAT’s decision which found that it was not permitted to deduct an LTD litigation settlement from the claimant’s ongoing IRBs. The Divisional Court rejected the appeal. The Court noted that the Tribunal made a finding of fact that the LTD settlement did not provide appropriate details to allow the insurer to deduct it from IRBs, because the settlement was not confined to payment for the LTD claim alone; it also included claims for punitive damages, costs, and interest. The release did not specify how much of the settlement was attributed to each head of damages in the LTD litigation. The Court rejected the analogy between IRB deductions and section 267.8 of the Insurance Act, which provided a separate basis for deduction of collateral benefits in the tort context.

Giannoylis v Travelers Insurance (20-000280)

The claimant sought reconsideration of the Tribunal’s decision in which it found that he: (i) was not entitled to IRBS from August 10, 2018 to February 19, 2019; (ii) failed to provide sufficient particulars to calculate the IRBs payable from February 20, 2019 to January 11, 2021; and (iii) was not entitled to IRBs from January 12, 2021 to date and ongoing. With respect to issue (iii), both the claimant and the insurer agreed that the parties never intended for the Tribunal to make a finding regarding the claimant’s entitlement to IRBs in the post-104 week period. As such, Vice Chair Lake varied the decision to strike the paragraphs that addressed and made findings regarding the claimant’s entitlement to post-104 week IRBs. The remainder of the claimant’s request for reconsideration was dismissed. In dismissing the reconsideration, Vice Chair Lake found that there was no error of fact or law in her findings, and this was not a situation where it would have been appropriate to simply order IRBs payable subject to the claimant having yet another opportunity to provide additional information, given the claimant’s failure to comply with the Tribunal’s Order for productions.

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.

Aflo v. Aviva General Insurance Company (20-001404)

The claimant applied to the LAT because its insurer sought to deduct EI sickness benefits from her IRBs as “gross employment income”. Vice Chair Johal found that EI sickness benefits were not deductible from an IRB. Vice Chair Johal rejected the insurer’s argument that the EI sickness benefits were being received as a result of the claimant being employed after the accident. Rather, it was held that the claimant was receiving the EI sickness benefits based on her employment before the accident. Vice Chair Johal also found that, even if the EI benefits had been deductible, the insurer would not be entitled to an IRB repayment because its notice seeking a repayment was deficient. The notice was incorrect in that it sought a repayment amount in excess of what should have been requested. Moreover, it did not provide a clear explanation of how the overpayment had been calculated. Given that insurers are able to unilaterally deduct benefits through an IRB repayment notice, Vice Chair Johal stated that notices needed to be accurate in order to prevent prejudice to claimants.

Huang v. The Dominion of Canada General Insurance Company (19-006264)

The self-employed claimant sought entitlement to IRBs in the amount of $400.00 per week. The sole issue in dispute related to calculating the claimant’s quantum of IRB, as the insurer calculated the claimant’s IRB quantum at $0 per week. Adjudicator Kepman agreed with the insurer, and held that personal income tax returns and payroll summaries were not sufficient to calculate a self-employed person’s IRB, and further information, such as corporate income tax returns, the business’ monthly revenue, and labour costs were required. On that basis, Adjudicator Kepman dismissed the claimant’s claim.