Licence Appeal Tribunal
Tribunal File Number: 17-005302/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
S.W.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude
APPEARANCES:
For the Applicant: Alexei Antonov, counsel and Alina Kaganovich, student-at-law
For the Respondent: Geoffrey Keating, counsel and Han Nguyen, AB Specialist
Court Reporter: Rose Uriega
HEARD In-Person: February 2, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on May 2, 2016. She applied to the respondent for an income replacement benefit pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) for the period from May 9, 2016 until February 7, 2017 when she returned to work.
2At the hearing the respondent conceded that the impairments suffered by the applicant were of sufficient severity that she would meet the test for entitlement to an income replacement benefit. This concession rendered the need for medical evidence regarding the extent of the applicant’s impairments unnecessary, so the doctors who were on standby to give evidence by telephone were advised that they would not be needed. I proceeded to hear evidence from the applicant.1
3The complicating factor in this case is the fact that the applicant was on maternity leave at the time of the accident. She was receiving both Employment Insurance maternity leave benefits (EI) and a top up from her employer such that her total income at the time of the accident was similar to her income when she was working full-time. The respondent’s concession that the applicant’s impairments were such that she would otherwise meet the test for an income replacement benefit meant that the balance of the hearing focused on the right of the respondent to deduct the EI and top-up benefits from the applicant’s income replacement benefit entitlement.
4The respondent also submitted that the applicant had available to her, but failed to apply for, a short/long-term disability benefit through her employer. The respondent takes the position that the applicant was obliged to apply for that benefit and that it is entitled to deduct 70% of the amount she would have received had she applied.
ISSUES
5The issues identified in the case conference order are:
a. Is the applicant entitled to receive an income replacement benefit in the amount of $400/week for the period from May 2, 2016 until March 27, 2017?
b. Is the respondent liable to pay a special award because it unreasonably denied payments to the applicant?
c. Is the applicant entitled to interest for the overdue payment of benefits?
6As stated above, the respondent conceded entitlement to an income replacement benefit, so the actual issue before me is what amounts the respondent may deduct from the $400/week payment the applicant would otherwise be entitled to receive. The respondent argues that it is entitled to deduct 70% of “gross employment income” from amounts otherwise payable to the applicant and that includes 70% of the EI maternity benefits and the employer top up.2 The applicant argues that her maternity benefit and top-up are not deductible and she should therefore receive the