Category: Income Replacement Benefits

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.

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.