Category: Income Replacement Benefits

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.

Kunaseelan v. Aviva Insurance Company of Canada (20-000565)

The claimant sought entitlement to IRBs of $400.00 per week for the five month period between the date of loss and the date the OCF-3 was submitted. Adjudicator Norris dismissed the claim, holding that section 36(3) barred the claimant’s entitlement to IRBs for the period prior to OCF-3 submission. The claimant argued that the insurer failed to prove an OCF-3 in the application package, and that the insurer’s failure to comply with section 32(2) should result in her entitlement to IRBs during the period. The claimant relied upon a FSCO decision in Anthonipillai v. Security National in which a similar result was reached. Adjudicator Norris rejected the claimant’s arguments and found that the decision in Anthonipillai was incorrect and that the bar to receiving IRBs prior to submission of an OCF-3 was absolute. Adjudicator Norris also found that no interest was payable on IRBs that were back-paid to the claimant in May 2020 because the claimant had not provided sufficient information to support her claim for IRBs, meaning that IRBs were never actually overdue. Similarly, the claim for a special award was dismissed because the insurer was not required to pay IRBs while the claimant remained in non-compliance with requests for financial and income records.

S.V. v. Wawanesa Insurance (18-009702 and 20-001009)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment, IRBs, ACBs, and various medical benefits. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment as a result of the accident. While the claimant did sustain a psychological impairment in the accident, he sustained only Class 2 Mild Impairments or Class 3 Moderate Impairments due to the accident. The claimant maintained his social contacts, and he communicated with assessors in an effective and pleasant manner; there was no evidence linking the claimant’s psychological impairments with his ability to perform activities of daily living; and the claimant remained independent with sustaining an ordinary routine without supervision, and used his judgment to make simple decisions. Adjudicator Hines was critical of the claimant’s experts, as they did not review the claimant’s pre-accident medical records which showed significant pre-accident health issues, and relied mainly on the claimant’s self-reporting. The claim was IRBs was denied, as the claimant failed to prove how his psychological impairments affected his ability to work. He also failed to submit financial records in support of a loss of income. The claim for ACBs was denied as the claimant’s Form 1 assessor relied upon the claimant’s self-reporting and she did not review the pre-accident medical records, nor did she understand the extent of the claimant’s pre-accident health issues. The medical benefits were denied because the claimant failed to prove the connection between the proposed treatment and the accident.

DeGroot v. Licence Appeal Tribunal (2022 ONSC 6160)

The claimant appealed the Tribunal’s decision awarding IRBs of $161.11 per week up to October 6, 2020, and declining to award any IRBs thereafter. The claimant also appealed the dismissal of the special award claim. The Court dismissed the appeal, holding that the Tribunal’s weekly IRB award was accurate in light of the claimant’s accounting report, and that the $185 minimum for IRBs after the 104 week mark could be reduced by post-accident income. Regarding IRBs beyond October 6, 2020, the Court held that the Tribunal did not err in dismissing the issue, as the claimant had not put evidence of an IRB calculation beyond that date before the Tribunal, and the issue appeared to be moot as the insurer had conceded payment of $400 per week for that time period after the Tribunal’s decision was released. The Tribunal’s decision that the issue was moot was entitled to discretion. Finally, the Court held that the Tribunal’s decision to not grant a special award properly considered relevant factors in coming to the decision to dismiss the claim.

Amminikandiyil v. Unifund Assurance Company (19-010045)

The claimant sought entitlement to IRBs. The claimant claimed that she was employed for 26 of the last 52 weeks prior to the accident, and provided six paystubs to support her claim. Adjudicator Norris found that the claimant did not meet the minimum employment threshold to qualify for IRBs, as there was no evidence to show that she worked the requisite 26 weeks of the last 52 weeks preceding the accident. The paystubs were for her husband’s company, and provided no information as to the hours or days worked. Even if the paystubs were accepted, they indicated that the claimant worked, at most, 22 weeks out of the last 52 weeks prior to the accident. As a result, the claimant did not qualify for IRBs.

F.T. v. The Co-Operators Insurance Company (19-001291)

The self-employed claimant applied to the LAT seeking entitlement to medical benefits outside of the MIG and a determination of the quantum of IRBs. The insurer had paid IRBs in the amount of $59 per week, based on its expert accounting report. The claimant sought IRBs in the amount of $400 per week, based on his own accounting report. Adjudicator Chakravarti found that the claimant was outside of the MIG as a result of a psychological injury. The claimant was not entitled to the disputed OCF-18 for chiropractic treatment and massage. Adjudicator Chakravarti noted that the only evidence before the LAT recommending chiropractic and massage treatment was the OCF-18 itself, which was not sufficient to prove that the proposed treatment was reasonable and necessary. With regards to IRB quantum, Adjudicator Chakravarti found that the claimant’s accounting report made questionable assumptions that were not in keeping with the documentary evidence. Adjudicator Chakravarti also found that there were no documents showing that alleged pre-accident gross partnership income was reported as income to the CRA and, therefore, the gross partnership income could not form part of the IRB calculation. In addition, the claimant failed to prove that alleged post-accident losses were reasonable in the circumstances and necessary to prevent a loss and/or a result of the accident. The claimant was not entitled to further IRB payments.

Gupta v. TD Insurance Meloche Monnex (19-010353)

The claimant applied to the LAT seeking entitlement to the cost of examinations, post-104 IRBs, ACBs, and a special award. The claimant was involved in a motor vehicle accident in 2016. Her injuries were found to include post-concussion syndrome and chronic pain. She received long-term disability benefits until 2020 (when she received an advance buyout of her long-term disability benefits) and CPP Disability benefits from 2017 to 2020. Adjudicator Grant did not find the s. 44 post-104 IRB reports compelling, as the opinions were provided individually and there was no consideration of the combined impact of the claimant’s impairments on her ability to return to work. Adjudicator Grant found that the claimant was entitled to post-104 IRBs and a neuropsychological cognitive assessment. She was not entitled to a language pathology assessment. The claimant did not have the financial means to pay for attendant care services. As such, Adjudicator Grant found that the claimant had failed to prove that she incurred any ACBs, and she was not entitled to payment of ACBs. Finally, Adjudicator Grant found that the insurer’s failure to provide s. 44 assessors with all the clinical notes and records of the claimant did not meet the threshold for granting an award, and the claim for a special award was dismissed.

Foster v. Aviva General Insurance Company (19-014657)

The claimant sought reconsideration of the Tribunal’s decision that the CERB / CRB was deductible from IRBs. The insurer agreed with the claimant that the Tribunal’s decision was an error. Vice Chair Boyce granted the reconsideration and held that CERB / CRB was not deductible from IRBs because it was not “gross employment income” or “other remuneration from employment”, and was not analogous to “salary, wages and other remuneration from employment”.