If Benefits Are Overdue Interest Is Payable - AR and TD General Insurance Company LAT 16-003487 2018 CanLII 2310

April 09, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AR and TD General Insurance Company LAT 16-003487 2018 CanLII 2310

Date of Decision: January 12, 2018
Heard Before: Adjudicator Ian Maedel

REHABILITATION BENEFITS: Once insurer allows retroactive IRBs interest is due on the amount; applicant fails to show that orthopaedic mattress is reasonable and necessary

AR was injured in a car accident on March 6, 2015 and suffered lower back pain, thoracic strain/sprain, whiplash, right shoulder strain and a right knee contusion. On December 22, 2015, TD determined that the injuries were not predominantly minor in nature and fell outside of the MIG.

AR applied to the LAT on November 3, 2016 after TD denied IRBs and a rehabilitation benefit for an orthopedic mattress. TD paid an IRB from June 26, 2015 to January 14, 2016 and stopped the benefit following the receipt of physiatry and psychological insurer examinations. The IRB was not paid from January 15, 2016 to August 1, 2017 until a s. 44 Psychology Report was provided to TD and IRB payments were reinstated and paid to date.

Although not specifically laid out as an issue in dispute, AR now claims interest on the IRB benefit that was not paid between January 15, 2016 and August 1, 2017. TD disputes any payment of interest, citing that it was AR who failed to provide clinical notes and records that prevented the continued determination of the IRB entitlement. AR submits that the SABs is clear, that once it is determined that an applicant is entitled to a benefit, the benefits become overdue from the date that it should have initially been paid and interest is payable at the rate of 1 per cent per month, compounded monthly.

AR also claims the cost of an orthopedic mattress as a rehabilitation benefit, stating that it would reduce back pain and assist in a better sleep. TD submits that in light of the s.44 physiatry report, a new mattress would not assist in AR’s pain management.

Issues:

1. Is AR entitled to receive interest on the income replacement benefit not paid in the period between January 15, 2016 and August 1, 2017?
2. Is AR entitled to receive a rehabilitation benefit in the amount of $2,910.15 for an orthopedic mattress?
3. Is AR entitled to costs or an award pursuant to s.10 of Regulation 664 of the Insurance Act?

Result:

1. AR is entitled to receive interest on the income replacement benefit for the period between January 15, 2016 and August 1, 2017. TD has already paid the benefit for this period and has a duty pursuant to s. 51 of the Schedule to pay interest on overdue payments at 1 per cent per month,
2. AR has not established on a balance of probabilities that she is entitled to a rehabilitation benefit in the amount of $2,910.15 for the purchase of an orthopedic mattress,
3. Application for costs and an award pursuant to s. 10 of Regulation 664 are dismissed.

TD conceded that AR is entitled to an IRB from January 15, 2016 and payments continue and are ongoing. Section 51 of the Schedule clearly states that interest is payable on overdue benefits. Unlike the issue of potential entitlement to an award, there is no necessity for particulars on this issue. Once TD conceded that the IRB was payable, the test was met; if benefits are overdue, interest is payable. Once TD conceded that the IRB was payable, interest became payable on overdue benefits. TD shall pay interest for the overdue IRB as per the schedule.

AR has not demonstrated that an orthopedic mattress is reasonable and necessary as per the test laid out in the Schedule.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.