Applicant Receives IRBs due to Insurer Error - AD and Aviva Insurance Canada, 2018 CanLII 13176 ON LAT 17-004156

June 09, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AD and Aviva Insurance Canada, 2018 CanLII 13176 ON LAT 17-004156

Date of Decision: February 26, 2018
Heard Before: Adjudicator Chris Sewrattan

IRBs: applicant fails to make case for IRBs; insurer must still pay IRBs for one period of time as they did not respond to AD within the prescribed time period

On August 1, 2015 AD was driving when she and her husband were in a car accident. AD applied for IRBs but when Aviva denied payment AD applied to the LAT.

Issues:

1. Is AD entitled to IRBs in the amount of $400.00 weekly for the period covering August 1, 2015 to date?
2. Is AD entitled to interest on any overdue payment of the IRB?
3. Is AD entitled to an award on ground that Aviva unreasonably withheld or delayed payments to AD?
4. Is AD entitled to costs under Rule 19 of the LAT Rules?
5. Is Aviva entitled to costs under Rule 19 of the LAT Rules?

RESULT:

1. AD has failed to prove her entitlement for an IRB under s. 5(1) of the Schedule. She is not entitled to an IRB for the period before October 21, 2015 or the period between May 1, 2015 and the date of this hearing. However, as a result of s. 36(6) of the Schedule, AD is entitled to payment for an IRB at a rate of $400 weekly for the period between October 21, 2015 and May 1, 2017. AD is entitled to interest on the outstanding payment in accordance with the Schedule.
2.  AD is not entitled to an award under s. 10 of Regulation 664 of the Insurance Act. An award can only issue when an insurer has unreasonably withheld or delayed a payment to which AD is entitled. Although Aviva delayed in responding to AD, Aviva did not delay in providing a payment to which AD is entitled.
3. AD is not entitled to costs under Rule 19, Aviva is not entitled to costs either.

Beginning in 2007 AD worked as a validator. The work was largely sedentary doing typing, data entry, and stapling. In April 2015, AD experienced left wrist pain and briefly left work on EI sickness benefit. She returned to work on July 2, 2015. Three weeks before the accident, on July 6, 2015, AD was laid off and began to receive regular EI.

Aviva does not contest that AD meets the employment eligibility criteria for an IRB, however Aiva contests that the as a result of the accident AD suffers from a substantial inability to perform the essential tasks of her employment.

The Adjudicator noted that AD has provided no evidence on her inability to perform the essential tasks of her pre-accident employment. AD’s IRB claim rests entirely on legal arguments about the operation of s. 36 of the Schedule. Although AD has not met the test for entitlement to an IRB under s. 5(1), Aviva concedes at paragraph 31 of its factum that because of s. 36(6) AD is entitled to an IRB between October 21, 2015 and May 1, 2017.

Section 36(6) requires an insurance company to pay for an IRB if the insurance company receives both an Application for Accident Benefits and Disability Certificate and does not respond with a notice of a decision within ten business days. The insurance company is required to pay for the benefit between the day the application and certificate were received by the insurance company and the day that the insurance company responded with notice of its decision. In this case, the parties agree that Aviva provided notice of its decision on May 1, 2017 and this was after the ten-business day deadline.

The Adjudicator examined Aviva’s copies of both documents. The Disability Certificate has a facsimile receipt time stamp of October 1, 2015 at 5:33 p.m. The Application for Accident Benefits has a facsimile receipt time stamp of October 21, 2015 at 3:23 p.m. The Adjudicator was satisfied that the facsimile receipt stamps are correct; as a result finding as a fact that Aviva received the Application for Accident Benefits on October 21, 2015. Since the time period for payment under s. 36(6) begins when both the Application for Accident Benefits and Disability Certificate are received, the payment period under s. 36(6) begins on October 21, 2015.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.