Category: Income Replacement Benefits

A.H. v. Aviva Insurance Canada (19-004639)

The claimant applied to the LAT seeking entitlement to IRBs and medical benefits. Vice-Chair McGee found that the claimant failed to meet the substantive test for IRBs. The claimant submitted that under s. 36 of the SABS the insurer was required to pay IRBs for a five-month period because the insurer failed to request insurer examinations within 10 days of receipt of the claimant’s OCF-3. Vice-Chair McGee found that the insurer was not required to pay IRBs during this period because the insurer requested an Election of Benefits (OCF-10) within 10 days of receipt of the OCF-3, and the claimant failed to submit a completed OCF-10. Vice-Chair McGee held that the s. 35 requirement to elect a benefit is mandatory and unambiguous. Failure to complete this step renders an application for a specified benefit incomplete. The claimant’s OCF-2 did not eliminate the ambiguity in the OCF-3, which supported IRBs and NEBs, and did not stand in the place of an OCF-10 election. The applicant’s failure to elect a specified benefit meant that the insurer’s obligations under s. 36 were never triggered. The application was dismissed.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant filed a request for reconsideration arising out of Adjudicator Neilson’s decision that he was not entitled to IRBs or the cost of a psychological treatment plan. Adjudicator Neilson dismissed the request. At the initial hearing, the claimant brought a motion to exclude the insurer’s experts’ reports on the basis that the insurer failed to comply with an order to produce the clinical notes and records of its IE experts, in particular the raw test data from the IE psychologist. Adjudicator Neilson had dismissed the motion on the basis that the insurer had provided proof of best efforts to obtain these records. Then, the claimant sought an adjournment so that the IE psychologist could produce the data to the claimant’s treating psychologist. Adjudicator Neilson dismissed that adjournment request, but the hearing was adjourned for other reasons. At the hearing, the claimant’s treating psychologist testified that she did not interpret the raw data as did not pay the fee to obtain this data through a computer program. Ultimately, Adjudicator Neilson agreed with the IE psychologist and on reconsideration, found that the raw data results would not have changed her opinion with respect to the IRB dispute or entitlement to the disputed psychological treatment plan.

Liao v. Aviva General Insurance (19-004856)

The claimant applied to the LAT seeking entitlement to IRBs and a treatment plan proposing chiropractic treatment. The claimant submitted that she attempted to return to work after the April 2016 accident but ceased working in August 2016 due to accident-related impairments. The insurer argued that the claimant was not entitled to IRBs because she did not comply with requests for documents to complete her IRB application and calculation until November 2019, and therefore she was not entitled to IRBs prior to November 2019. Alternatively, the insurer argued that the claimant had not shown that she satisfied the test for pre- or post-104 IRBs. Adjudicator Chakravarti found that the insurer provided proper (although late) s. 33 requests in December 2016 following receipt of the OCF-3 and the insurer was able to rely on the s. 33(6) consequences for the claimant’s non-compliance with s. 33 requests. The claimant did not produce requested income information until January 2018 and did not produce the requested OCF-2 until November 2019. Adjudicator Chakravarti found that the claimant did not provide a reasonable explanation for the delay in providing the requested documentation and the insurer was entitled to withhold payment of IRBs for the period of non-compliance. Adjudicator Chakravarti found that the insurer’s s. 33 request was made more than 10 days after receipt of the OCF-3 (contrary to the requirements in s. 36(4)) and IRBs would therefore be payable for the period from receipt of the OCF-3 until the s. 33 request was made if the claimant met the substantial inability test for pre-104 week IRBs during this period. Adjudicator Chakravarti found that the claimant failed to prove that she met the test for pre- or post-104 IRBs and was not entitled to IRBs for any period before the s. 33 requests were made or after the s. 33 requests were complied with. The claimant also failed to meet her onus of demonstrating that the proposed chiropractic treatment was reasonable and necessary. The application was dismissed in its entirety.

Aslivo v. Aviva Insurance Canada (19-004717)

The claimant applied to the LAT seeking a special award and entitlement to interest on two lump sum payments of IRBs made by the insurer. The insurer sought repayment of an overpayment of IRBs. Vice Chair Flude began the analysis by stating: “While the Schedule has been characterized as consumer protection legislation and should be given a broad and liberal interpretation, it is important to bear in mind that the obligations of the parties are mutual. No level of broad and liberal interpretation can save a consumer who simply refuses to cooperate with an insurer.” With regards to the first lump sum payment of IRBs, Vice-Chair Flude separated the issues into two distinct periods. In the first period, leading up to an IRB response letter / s. 33 request, the insurer was not in compliance with its obligations under the SABS to respond to the IRB application within 10 days. In the second period (after making the request for documents), the insurer was in compliance with the SABS. Vice-Chair Flude found that the insurer was liable to pay interest during the period it was in non-compliance with the SABS. The insurer was not liable to pay interest on the lump sum amount for the period starting when the reasonable s. 33 requests were made until the s. 33 requests were complied with (at which time the insurer paid the lump sum amount). The second lump sum payment was made for a period during which the claimant’s entitlement to IRBs had been terminated based on IE assessments. The lump sum back payment was made after the claimant was re-assessed and it was determined that her condition had deteriorated such that she met the test for IRBs. Adjudicator Flude found that although the insurer had not acted unreasonably when terminating the benefit for a period, interest was payable on the lump sum back payment. The situation was found to be analogous to a claimant being successful in an application for an IRB to the Tribunal. Adjudicator Flude found that the insurer was entitled to repayment of an overpayment of IRBs for a specific period, as claimed. The claimant was not entitled to a special award.

Green v. Intact Insurance Company (19-013031)

The claimant sought reconsideration of the Tribunal’s decision that the SABS did not provide for funding of multidisciplinary IRB reports. Vice Chair McGee rejected the reconsideration, finding no error in law. She noted that nothing prevented the claimant from responding to the insurer’s IE reports, but that he had to do so at his own expense. Vice Chair McGee rejected the argument that section 25 did not specifically bar expenses for IRB reports and that such reports should therefore be payable, noting that section 25 is clear and unambiguous as to the types of reports an insurer must fund. Additionally, Vice Chair McGee reiterated that stabilizing costs was one of the goals of the SABS, and that restricting the types of assessment an insurer was required to fund aligned with the Legislature’s policy goal.

Polis v. Aviva General Insurance (20-000025)

The claimant sought entitlement to IRBs and ACBs. Adjudicator Kaur found that the claimant did not suffer a substantial inability to perform the tasks of her pre-accident employment as a result of the subject accident. The claimant was not working at the time of the accident due to a prior workplace injury, and her family doctor’s evidence was that she would require significant improvement before being able to return to work. Adjudicator Kaur found that the claimant’s testimony that that her pre-existing low back pain had resolved was not credible, given that she had not returned to work and remained on short term disability at the time of the accident. Adjudicator Kaur also found that the claimant did not have functional limitations that would warrant entitlement to ACBs. The claimant’s Form 1 was submitted with no accompanying report and no explanation as to why the level of care was recommended. Adjudicator Kaur preferred the findings of the IE assessors, as their objective testing / observations showed that the claimant was able to perform her self-care needs.

A.H. v. Unica Insurance Inc. (18-012320)

The claimant applied for reconsideration of the Tribunal’s decision that he was not entitled to IRBs because he was not employed at the time of the accident. The claimant was scheduled to start a job two weeks after the accident. Because of the accident, he was unable to start the job. Adjudicator Grieves dismissed the reconsideration, holding that the Tribunal’s decision did not violate the principle of stare decisis, the principles of statutory interpretation, or the purposes of consumer protection legislation. The SABS required the claimant to be “employed at the time of the accident”. To construe the phrase to include a person in the claimant’s position would go beyond what the legislation entitled the claimant to receive.

Hines v. TD Insurance Meloche Monnex (19-006324)

The claimant disputed entitlement to IRBs. The insurer sought repayment of IRBs paid to date due to the exclusion barring IRB entitlement when a person is operating an uninsured vehicle (section 31(1)(a)(i)). Adjudicator Farlam dismissed the IRB claim and ordered the claimant to repay all IRBs due to the exclusion. She held that the claimant new or ought to have known that his vehicle was uninsured. He placed insurance through a “broker” by email after meeting the “broker” at a gas station. The claimant paid the “broker” in cash, and he received no payment or policy documentation from the “broker”. He also never received an invoice for insurance. Additionally, the text messages with the “broker” contained blatant irregularities, including misspelling “insurance” and “Ontario”. Adjudicator Farlam found the claimant’s evidence that he believed he had purchased valid insurance to be non-credible. The claimant was employed and high school educated, and had previously placed legitimate insurance on a vehicle.

Abou Hussini v. Travelers Insurance (19-002005)

The claimant sought entitlement to IRBs, removal from the MIG, and various medical benefits. Adjudicator Reilly dismissed all the claims. She held the claimant failed to prove that his accident-related injuries were non-minor, or that she suffered a pre-existing condition that would prevent maximal recovery under the MIG. She found that the allegations of chronic pain, concussion, and psychological impairment were not proven. Similarly, Adjudicator Reilly held that the claimant did not suffer a substantial inability to complete the tasks of his pre-accident employment. The claimant continued to work as an Uber driver for almost one year after the accident. He also started a new business during COVID.

Li v. Allstate Insurance (19-004738)

The claimant sought entitlement to IRBs, two treatment plans for physical and psychological therapy, and a special award. Vice Chair Boyce dismissed the claims. The claimant failed to provide sufficient information proving that she was employed at the time of the accident. The Record of Employment suggested that she quit her job a few days prior to the accident. The employer told the insurer the same information. The claimant disputed that this was accurate, but failed to provide an amended Record of Employment. Further, the claimant’s impairments were not sufficiently serious to meet the “substantial inability” test. The medical records showed only sporadic complaints to the family physician. The IE reports were accepted by Vice Chair Boyce, which opined that the claimant did not suffer from a psychological or orthopaedic injury. The claimed treatment plans were also denied due to the claimant’s failure to prove that the treatment was reasonable and necessary. The claimant had reported to her family doctor that she was “basically pain free” as of August 2018.