Psychological Trauma and Insurer’s Ignorance

Income Replacement Benefits (IRBs) are part of Ontario’s Statutory Accident Benefits Schedule (SABS). These payments provide financial relief to victims of motor vehicle accidents whose income is affected by an accident-related injury.

Individuals applying for Income Replacement Benefits are required to meet a number of qualifications. Above all, they must demonstrate that their injury is severe enough to hinder them from working in the same capacity as they did prior to the accident. These injuries can include both physical and emotional impairments.

In K.K. vs. Aviva General Insurance, 2020 ONLAT 18-012611/AABS, the Applicant sought Income Replacement Benefits on the basis of both physical and psychological injuries, which the insurer paid for a period and then terminated. This case highlights the issues of unreasonably withheld/delayed payments as well as the processes for medical assessment for Income Replacement qualification.

The Case

The applicant was a 53-year-old man who was involved in a motor vehicle accident. At the time of the accident, the Applicant was a self-employed taxi driver. He also rented out his taxi to other drivers. Following the accident, the Applicant returned to work on a part-time basis. He also continued to rent out his taxi.

Approximately two months after his return to work, he visited his family doctor who, at that time, prepared and submitted an OCF-3 that determined the Applicant was suffering from a substantial inability to perform the essential tasks of his employment. It also stated that he was suffering a complete inability to carry on with his life as normal.

The OCF-3 was used to substantiate the Applicant’s claim for Income Replacement benefits. These benefits were sought on the basis of both physical and psychological injuries.

The Applicant’s insurer, Aviva, paid Income Replacement Benefits for 10 months. However, after conducting a multidisciplinary assessment report and obtaining surveillance evidence, they terminated the payment of benefits. Denial of the claim was based on Aviva’s determination that the Applicant did not suffer an injury severe enough to be incapable of performing the essential tasks of his employment.

Five months following the termination of benefits, another OCF-3 was submitted by the Applicant. This OCF-3 determined that the Applicant had been diagnosed with a major depressive episode as a direct result of the car accident. Aviva once again paid the benefits, before terminating them three months later on the basis of another multidisciplinary assessment arranged by them.

The Issue

The case was heard before Vice Chair Susan Mather, who reviewed the assessment reports and medical evidence provided by both the Applicant and the Insurer, Aviva.

In regard to the first multidisciplinary assessment provided by Aviva, Vice Chair Mather determined that it verified the psychological impairments suffered by the Applicant as a result of the accident. She noted that the assessors did not consider the impact of these impairments on the Applicant’s ability to perform the essential duties of his job, but focused solely on his physical impairments, instead. Vice Chair Mather also reviewed the surveillance evidence that was used to deny the claim, finding that this only confirmed that the Applicant rented his car to other drivers and that this made up the majority of his income.

Vice Chair Mather went on to review the second OCF report provided by the Applicant’s physician, preferring this evidence over the multidisciplinary report provided by Aviva because the latter’s physiatry assessment left no room to account for psychological impairments. Even more than this, the second assessment prepared by Aviva actually contradicted their first psychology report by not recognizing the already existing diagnosis of Major Depressive disorder.

The Result

The Vice Chair’s conclusion after reviewing all of the medical evidence and assessment reports was that the insurer had ignored their own medical evidence as well as the assessor’s diagnosis. Vice Chair Mather found that the Applicant suffered from physical and psychological injuries that resulted in a complete inability to engage in any employment that he is reasonably suited to.

Based on her review of the evidence, Vice Chair Mather determined that Aviva has unreasonably delayed or held the payment of Income Replacement Benefits to the Applicant. Therefore, the Applicant qualified for Income Replacement Benefits pre and post 104 weeks, as well as interest on the benefits payable. The Applicant was awarded a lump sum equal to 50% of the Income Replacement entitlements plus the interest.

Have You Been Denied Income Replacement or Another Benefit?

To qualify for Income Replacement Benefits under Ontario’s Statutory Accident Benefits Schedule, applicants must demonstrate that they’re unable to work in the same capacity they did prior to their accident. To try and avoid their responsibility for paying these benefits, insurers will often arrange medical assessments, which, more often than not, favour the position of the insurer.

This is why it’s essential to seek professional legal help when seeking compensation for damages suffered in a motor vehicle accident. Have you been denied income replacement or another benefit after an accident? Let us help you get what you’re entitled to. Contact Sharma Law today.

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