Volume. 5 Issue. 55- December 22, 2021
We begin this week by considering a decision from the Divisional Court where the Court found that the insurer’s IRB denial based solely upon a confirmed work return was not sufficient notice.
The second case this week involves a claim for post 104 IRB, where the Tribunal prefers the Applicant’s evidence weighed against 11 IE’s to determine ongoing entitlement to IRB.
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Medical Reasons Required for IRB Denial Despite Work Return
IRB Denial Based Upon a Return to Work Not Sufficient – In a matter before the Divisional Court, Allstate, In Varriano v Allstate had issued a December 30, 2015 Explanation of Benefits (EOB) indicating that Varriano’s IRB “has been stopped on December 2, 2015, as you returned to work full-time on December 2, 2015. No further Income Replacement will be paid after this date.” Subsequently, Varriano advised Allstate that as of July 1, 2018 he had been forced to stop working due to accident related impairments. Allstate denied the claim for further IRBs, referring to the earlier denial and indicating “our position remains unchanged”.
Varriano filed an application with the Tribunal and both in it’s initial decision and upheld upon ‘own’ reconsideration the Tribunal found that “terminating an IRB because an applicant returned to work is a perfectly valid “other” reason that does not require a medical component… Allstate does not have to conjure or fabricate a medical reason…Further, and to be frank, I am not sure how the notice could have been any clearer.”
The Court framed the issue before the Tribunal on whether Allstate’s Explanation of Benefits complied with the notice provision “and the medical and any other reasons for its determination”. The Court however found the Tribunal was incorrect in its interpretation in determining Allstate was not required to provide a medical reason, under s.37(4).
The Court referenced the 2010 legislative amendments that specifically required insurers to provide “medical and any other reasons”. This was noted “to require robust information sharing that allows the insured person to make an informed decision about whether to pursue their claims and file an appeal”. The Court further noted that “Insurers are not required to manufacture medical reasons where they do not exist, but to be explicit as to whether or not such reasons support denying or limiting coverage. If they explicitly deny having medical reasons to support their determination, the Applicant will come to understand that their disability or “impairment” is not currently in issue.” Conversely, “, if the insurer states that they have medical reasons to support their decision, the Applicant will be on notice that their ongoing “impairment” may be in issue when it comes time to apply for future benefits.”
In this instance, the EOB was found to have “left entirely unclear Allstate’s position on Mr. Varriano’s future eligibility for IRBs. Because Allstate’s Benefits Letter did not address the “medical reasons” for their denial, Mr. Varriano was unable to assess the full impact of their denial on his future rights.” In addition, the EOB “did not refer at all to Mr. Varriano’s medical condition or the specific provision of the SABS that it relied upon to deny benefits. Overall, it was insufficient to allow Mr. Varriano to assess his future eligibility for benefits under s. 11.”
Therefore, the appeal was allowed, and the appeal to the LAT was not time barred and would proceed on its merits.
Applicant’s Evidence Trumps 11 IEs for Post 104 IRB
Eleven IEs Don’t Defeat Post 104 IRB – Injured in a July 2016 accident Gupta sought post 104 IRB from June 14, 2019 and ongoing. In Gupta v TD Insurance,19-010353, prior to the accident, Gupta was employed with Starbucks as a Finance Manager earning $121,200 annually. Post accident, she received employment income and sick pay up to November 24, 2016 and was not entitled to IRB during this period due to her earnings. She further received LTD from November 25, 2016, through to September 21, 2020, before agreeing to a November 2020 advance buyout of her LTD entitlement. She also applied for and received CPP Disability (CPPD) benefits from February 2017 through to September 2020.
The Tribunal began by considering the fact of having been entitled to CPPD, which while not determinative, was persuasive given the finding that she passed a more stringent test for income benefits. The Tribunal placed significant weight upon the records of the family physician, as “given his regular and extensive treatment history with J.G., he would be most familiar with her functional limitations.” Gupta’s vocational psychologist opined that given her cognitive difficulties, especially with multitasking and cognitive fatigue, it would be difficult for her to maintain an adequate pace in any work environment. The expert further noted it to be important to recognize that “test for employability is not solely an individual’s capacity to maintain oneself in the workplace on a steady part-time or full-time basis.” There was a need to establish the capacity between work performance and other aspects of her life outside of the workplace.
For their part, TD relied upon a series of eleven IEs, that, while commissioned to make a CAT determination, were relied upon for the purposes of post 104 IRB. Upon review of these reports, they were found not to be compelling, “as the opinions were provided individually and there is no consideration of the combined impact of J.G.’s impairments on her ability to return to her pre-accident work, similar employment or any employment.” The suggested suitable alternative occupations were not persuasive, given that they failed to consider any of the functional limitations.
Although TD pointed to subsequent business endeavours that Gupta engaged in post-accident, “there is no evidence that those endeavours required the same level of engagement as her pre- accident employment role, or that financially, she was compensated at the same or similar rate.” Gupta’s expert had cautioned that the applicant would be unable to approximate her pre-accident wage, “which would likely be detrimental.”
The Tribunal found it to be “unlikely that the applicant would be able to retrain and be successful at securing gainful employment similar to her pre-accident position. It is further unlikely that she would be able to meet the standard of productivity that was expected of her in her role as a Finance Manager, and respectfully, the alternative positions recommended by (respondent’s assessor) are not comparable to her pre-accident role.” Therefore, the applicant was found entitled to post 104 IRB from June 14, 2019 ongoing.
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