At the beginning of the hearing, the insurer conceded that the impairments suffered by the claimant were sufficient for her to meet the test for IRBs, so the issue before Adjudicator Flude was what amounts the insurer could deduct from the $400 per week IRB quantum regarding the claimant’s EI maternity benefits and employer top up (at the time of the accident, the claimant was on maternity leave). The insurer also submitted that the claimant had available to her, but failed to apply for, a short/long-term disability benefit through her employer. The insurer took the position that the claimant was obliged to apply for that benefit, and that it was entitled to deduct from the IRB quantum 70% of the amount she would have received had she applied. Adjudicator Flude held that the insurer could deduct 70% of the EI and employer top-up from the IRBs payable to the claimant. Adjudicator Flude found that the insurer did not provide information regarding the quantum of benefits that would have been available through the short and long-term disability benefits available to the claimant. Adjudicator Flude did not allow for any deductions to the IRB quantum in relation to the short and long-term disability benefits.
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