Category: Income Replacement Benefits

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.

Nelson v. Travelers Insurance Company of Canada (19-012673)

The claimant sought entitlement to ongoing IRBs, removal from the MIG, and four treatment plans for physiotherapy and two assessments. Vice Chair McGee dismissed the claims. She held that the claimant failed to prove that she suffered from a non-minor injury. Her alleged chronic pain was not serious enough to qualify as non-minor. The claimant did not use medications, she returned to college within a few months of the accident, and she was largely independent with personal tasks and chores. The claimant also did not meet the IRB disability test. She returned to college shortly after the accident after quitting her job so that she could upgrade her credentials. She planned on returning to college before the accident occurred. The claimant did not look for a job while in college because she did not believe she could handle both a job and her studies. After graduating from college, the claimant’s inability to find employment was due to COVID rather than any physical impairment. Finally, Vice Chair McGee held that even if the claimant met the IRB disability test, she would not be entitled to claim IRBs until her completed election was submitted, as the OCF-3 supported both IRB and NEB.

Green v. Intact Insurance Company (19-013031)

The claimant sought entitlement to $10,400 multidisciplinary reports addressing entitlement to post-104 week IRBs. Vice Chair McGee dismissed the claims, holding that the SABS did not provide entitlement to post-104 week IRBs assessments. Section 25 lists the types of examinations and assessments an insurer was required to fund. The section does not require payment of assessments addressing post-104 week IRBs.

Switzer v. Waterloo Insurance (19-011403)

The claimant disputed his entitlement to attendant care benefits, housekeeping expenses, and two chair lifts. He also disputed the weekly quantum of IRBs he was entitled to receive. The claimant also sought a special award. The insurer argued that the accident was not the cause of the claimant’s impairments, and that they all pre-existed the accident from six earlier motor vehicle accidents. The insurer also argued that the claimant made material misrepresentations in relation to his claim for housekeeping expenses. Adjudicator Lake found that the accident was a necessary cause that exacerbated the claimant’s pre-existing psychological and cognitive conditions, but did not cause the claimant any new physical impairments or exacerbate his previous physical conditions. Adjudicator Lake declined to award ACBs because the claimant failed to prove that any expenses were incurred. The claimant failed to call his alleged service provider to give evidence and could not prove that the service provider was a professional acting in the course of his employment or self-employment. Adjudicator Lake also wrote that she would have declined to award ACBs due to the claimant’s failure to prove the service actually provided to him. There were no time dockets, daily logs, job diaries, or any information about the dates and times services were performed. Regarding HK expenses, Adjudicator Lake held that the claimant failed to prove that he suffered a substantial inability to complete his home maintenance and housekeeping tasks as a result of the accident. Regarding IRBs, Adjudicator Lake held that the claimant was entitled to $711.15 per week in IRBs during 2018 and $1,000 per week from January 2019 onwards. The claimant was self-employed as a lawyer at the time of the accident, and was a partner at a law firm prior to that. The last full fiscal year worked by the claimant at the law firm was 2016. The claimant did not complete a fiscal year at either his own law firm or as a partner at a law firm in 2017. Adjudicator Lake rejected the insurer’s position that consideration of self-employment income was restricted to a business being operated at the time of the accident. The claimant continued to practice law after the accident, so the insurer was entitled to deduct post-accident earnings in accordance with the SABS. No evidence was provided of the claimant’s income from 2019 onwards. Adjudicator Lake declined to grant a special award, as the only benefit found payable was IRBs, and the interpretation of the SABS that led to the dispute was not excessive, imprudent, or stubborn. Finally, Adjudicator Lake rejected the insurer’s position that the claimant made material misrepresentations in relation to the claim for HK expenses. She agreed that the housekeeper’s testimony called into question evidence given by the claimant regarding creation of invoices, the discrepancy was not a “material fact” with respect to the application for HK expenses; the discrepancy related to the author of the invoices rather than the content.