Leanne Zabudsky

Aviva appealed an arbitrator's decision that the respondent's Long Term Disability (LTD) benefits were 'gross employment income' and thus deductible from his Income Replacement Benefits (IRBs) at 70% of the gross amount.

The Director's Delegate allowed the appeal, finding that the arbitrator breached procedural fairness by deciding the issue on a basis not argued by the parties.

Furthermore, the Delegate held that LTD benefits are 'other income replacement assistance' under the Statutory Accident Benefits Schedule, not 'gross employment income', and therefore the gross amount of the LTD benefits must be deducted from the IRBs.

The Applicant sought non-earner benefits following a 2013 motor vehicle accident where he was struck as a pedestrian, aggravating a severe pre-existing right knee injury from a 2012 accident.

The insurer denied the claim based on independent medical assessments.

The arbitrator rejected the insurer's medical assessments as flawed for failing to properly consider the pre-existing injury.

However, the arbitrator dismissed the application because the Applicant failed to provide sufficient corroborating evidence of his pre- and post-accident activities of daily living, complicated by his post-accident cocaine addiction and inconsistent living arrangements, to prove he suffered a complete inability to carry on a normal life.

The applicant was injured in a motor vehicle accident and sought income replacement benefits (IRBs).

At the time of the accident, the applicant was receiving Long Term Disability (LTD) benefits.

The parties disputed how the LTD benefits should be deducted from the IRB quantum under the Statutory Accident Benefits Schedule.

The applicant argued for a net deduction, while the insurer argued for a gross deduction.

The arbitrator determined that, based on the language of the Schedule and the treatment of LTD benefits as gross employment income, the insurer may deduct 70% of the gross income received for LTD benefits when calculating the weekly IRB quantum.

The applicant was injured in a motor vehicle accident and sought income replacement benefits and non-earner benefits.

The insurer denied the benefits and the applicant applied for arbitration.

The insurer raised a preliminary issue that the application was barred by the two-year limitation period under section 56 of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer had provided a clear and unequivocal denial and that its subsequent review of new information did not reset the limitation period.

The application was dismissed as statute-barred.