Volume. 9 Issue. 23 – July 23, 2025
Post 104 IRB Confirmed Despite Ongoing Employment
This week’s case review provides important guidance on interpreting “complete inability” in the context of modified or limited work. The Tribunal considers a matter in which the Applicant was totally disabled for eight weeks post MVA, at which time she returned to work on a part time basis. At issue is whether this return to part-time work for a period of three years, at the time of the IE prelude entitlement to further post 104 IRB.
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Working With a Complete Inability – Following a July 2028 MVA, in which she was thrown from a motorcycle, the Applicant Thompson was off work for eight weeks from her self-employed role as a home based hairdresser. She returned to hairdressing on and off on reduced hours and modified duties. She was, however, unable to return to a 2nd job as a paid caregiver for her three grandchildren, due to the combined impact of her impairments, having been diagnosed with a fractured pelvis, concussion, post-concussion syndrome, chronic pain syndrome and psychological impairments. At issue, in 23-005657 v Certas, was whether Thompson was entitled to ongoing post 104 IRB same having been stopped by Certas in November 2021, following the results of a series of IEs.
It was the position of Thompson that she had been unable to return to being a paid caretaker for her three grandchildren, and that her attempts to return to her pre-accident occupation as a hairdresser at her pre-accident level of function have been unsuccessful. She further submitted that she lacked the education, experience, or functional capacity to work in any occupation or any of the occupations identified by the IE assessors. For their part, Certas maintained that Thompson does not meet the post-104 IRB test as she has resumed working part-time in her pre-accident occupation as a hairdresser which demonstrates that she does not meet the complete inability test. It also asserts that the applicant has the functional capacity to return to work in another job which is less physically demanding than her pre-accident occupation.
It was noted that prior to the accident, Thompson worked three days a week, approximately 10 hours per day as a hairstylist. She also spent two days a week, 8 hours per day as a caretaker for her three small grandchildren for which she received $150.00 per day in compensation. Following the accident, she worked part-time as a hairstylist, working up to three hours a day, up to a maximum of 10 to 12 hours per week, however was unable to resume caring for her grandchildren.
Referencing case law submitted by the parties concerning the post-104 IRB test, the Tribunal “did not find the fact scenarios outlined in any of the decisions relied on by the parties particularly applicable to the present case.” However, the Tribunal did make note of the Court of Appeal’s decision in Burtch v. Aviva Insurance Company of Canada, (“Burtch”) which highlighted the following as considerations with respect to what constituted suitable alternative occupations:
“i. A suitable alternative occupation must be reasonably comparable to the insured’s former job both in status and reward;
ii. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required; and
iii. While the primary focus in determining whether a job is a suitable alternative is on the insured’s functional limitations, job market considerations are also relevant.”
The Tribunal found that Thompson’s academic history was limited, as her highest level of education was high school. Further, her training and work experience was solely in the vocation of hairstyling as she has spent most of her adult life working in the field. Thompson’s age, academic history, and work experience were said to be barriers to alternative employment options. While she had returned to part-time work, the evidence was that she had essentially worked at a fraction of her pre-accident capacity due to her physical, psychological, and cognitive impairments.
Ultimately, the Tribunal found that “the totality of the medical evidence supports that the applicant has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience…”. The neuropsychologist report relied upon confirmed “ongoing cognitive impairments… which significantly interfere with her ability to carry out her pre-accident employment tasks as a hairdresser…the report notes that the applicant’s cognitive symptoms interfere with her ability to multi-task leading to mistakes with mixing up hair colours and uneven cuts…the applicant has problems with word finding and that cognitive and psychological tests support significant weakness in working memory, processing speed and attention and concentration…the applicant’s psychological and cognitive condition will lead to an increase in errors and slowness in performance which I find would limit her employability.”
A chronic pain report confirmed there to be permanent vocational restrictions that would remain and relegate Thompson to paced, light intensity roles for 8 to 10 hours per week. Further, the psychological reports of both parties’ assessors support that the ongoing psychological impairments have had a very negative impact on employment post-accident. The Tribunal found that Thompson’s age, combined with her accident-related physical, psychological, and cognitive impairments would be a barrier to her retraining or carrying out the essential tasks of the occupations identified in the labour market survey relied upon by Certas.
The Tribunal found as well that the occupations identified were not comparable to the former job in status. As an example, being self-employed allowed for control over her hours of work and schedule, which would be lost in the proposed alternative occupations. Additionally, Thompson’s “pre-accident employment as a hairdresser was creative and rewarding and she was passionate about her job.” Concluding, Thompson was entitled to payment of an IRB in the amount of $376.00 per week from November 5, 2021, to date and ongoing, less any post-accident income.
Upon reconsideration however, Certas contended that the Tribunal had in fact erred in law by applying the wrong legal test in the determination that Thompson met the test for post-104 IRBs. Firstly, the Tribunal found that “I applied s. 6(2)(b) of the Schedule to the facts before me in finding that the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. I agree with the respondent that this is the only disability test to be applied to an insured’s post-104 entitlement to IRBs.”
Certas further alleged that the Tribunal “erred in my interpretation of Burtch or in my consideration that alternative employment had to be comparable in status and reward in paragraph [24], I find it would not have changed the result.” The Tribunal had found that Thompson “would not be able to work in the alternative occupations identified by the respondent’s assessors because of her accident-related impairments. I find that whether those occupations were comparable to the applicant’s pre-accident occupation as far as status and reward ultimately had no bearing on the final decision.” Accordingly, ongoing entitlement to post 104 IRB was confirmed.
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