Volume. 6 Issue. 34 – August 31, 2022

In ‘No Laughing Matter’ the Tribunal considers the appropriate award to be levied in the face of an eighteen year delay in paying ACB. It is also noted that the interest payable on the delayed payments far exceeded the modest monthly ACB amount.

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Post 104 IRB Ongoing Despite Career in Comedy

No Laughing Matter – In 20-014497 v Intact, the Applicant Lynch, struck as a pedestrian in an April 2018 accident, sought entitlement to post 104 IRB in addition to a CAT designation.

With respect to IRB, Intact argued both causation, suggesting that his mental health issues were “too attenuated to be as a result of the accident”, as well as the fact that Lynch was actively working in a promising comedy career.

As for causation, the Tribunal cited a previous decision, wherein “one overarching fact stands out”, at the time of the accident, the applicant was employed and intended to continue working for the indefinite future, but hasn’t been able to return, with “the accident standing as bright line in [the applicant’s] life.” The subject accident was said to have set Lynch “on a downward spiral’, and as a result he had not been able to work in any consistent fashion, despite several attempts.

The Tribunal found that Lynch was “unable to meet reasonable standards of productivity in a competitive marketplace.” The impediments to a work return were the “inability to do extended computer work, his alcoholism, and his mental health, which leaves him prone to depression, outbursts, and suicidal ideation.” The Tribunal further did not find that Lynch’s comedy activities established abilities inconsistent with a “complete inability. This, despite agreeing with Intact that Lynch “exhibits a good amount of initiative, organization, responsibility and even functional abilities, such as securing a line-up of local comics, securing a venue, updating posters, posting them up, running a show, and dealing with the finances.” However, “the argument falls short when the activities are viewed in context.”

The activities themselves were described as “sporadic, conducted as short tasks of up to two hours, spread out over a course of a few days, preformed at Lynch’s will. While Lynch. hasn’t missed any shows, they are all in the evening, so Lynch’s depression and inability to get started on some days is covered-up.” Therefore, the activities “do not translate into an ability to show-up everyday to work at an employer’s schedule and consistently work and maintain working relationships.” As a result, while Lynch “sincerely desires to and has attempted to return to work”, he remained at present as suffering from a complete inability.

With respect to a CAT designation, Lynch submitted that he sustained the requisite three class 4 marked impairments in the domains of ADLs, Social Functioning, and Adaptation, with a class 3 impairment in Concentration. The Tribunal agreeing with Intact, that if Lynch failed to establish a marked impairment in any one of the three domains, then he fails to meet the test.

Intact focussed on ADLs, and successfully established that Lynch did not suffer from a marked impairment. The Tribunal found in fact that Lynch failed to meet the class 4 criteria from two perspectives. First, while generally accepting the evidence of Lynch’s psychological expert, the finding of a class 4 impairment was largely based upon a description provided in an OT report, said report indicated as “noticeably overstated compared to the overall evidence presented in the hearing”.

Secondly, and a focus of the hearing, was how to properly rate Lynch’s “function in ADLs given the gap in his functional abilities between his regular “good” days and his acute periods when his mental health issues are symptomatic.” It was confirmed that “the evidence was overwhelmingly clear that most of the time, (Lynch) performs his ADLs with little or no impairment.” This however contrasted with Lynch’s submissions that “when his mental health issues are symptomatic, his abilities and performance are substantially decreased, such when he is hospitalized or suffering a depressive episode.”

Ultimately, the Tribunal found that combining Lynch’s “very mild functional limitations on most days in his ADL with his limitations on his acute periods, produces an overall ADL rating in the high-end of a class 2 impairment or possibly low end of a class 3, but in any event, definitively short of a class 4 marked impairment.” This conclusion was reached as “because on most days – 28 out of 30 days a month – he is high functioning in this domain, and the acute days are a relatively short periods of each month. As well, even during the depressive stages, he is still independent in his ADLs, albeit delayed.”

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