Volume. 5 Issue. 13 – March 24, 2021

In this all IRB edition, we review 2 decisions where the LAT deals with first, an initial denial four years post-accident where the failure to secure a psych IE undermines the Respondent’s defence. In the 2nd matter reviewed, an ambiguity found in the Schedule regarding the deductibility of the Employment Insurance Sickness Benefit as post accident income is remedied by the LAT.

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Failure to Secure Psych IE Undermines Post 104 Defence

Nothing Really Changed – In Cox v Wawanesa (19-012281), the Respondent paid Cox IRB related to an April 2014 accident until early 2018, a period of almost four years. At that time, following a multidisciplinary IE, IRBs were terminated on the basis that Cox could return to some form of suitable employment. The Tribunal awarded IRB to date and ongoing, finding Cox’s assessor’s reports and testimony more persuasive as they considered Cox’s physical injuries in conjunction with her psychological impairments in arriving at the opinion regarding her employability. This was in contrast to the IE’s that considered only Cox’s physical impairments, without any psychological IE conducted.

The Tribunal found that the “role and prominence of pain in this case made this a unique and more challenging case, as assessing an impairment related to pain is difficult and the process is not as clearly and precisely defined as with other kinds of impairment.” The failure on the part of the Respondent “to conduct assessments in such cases by health professionals who are knowledgeable in this area… ultimately weakened the presentation of the respondent’s case…”. The multidisciplinary assessment “was greatly undermined by the fact that it did not investigate the severity of the applicant’s psychological problems, including her chronic pain syndrome.”

The Respondent’s orthopaedic expert acknowledged that he found the ‘complete inability’ test “challenging” and “simply focussed on the words ‘any employment’ to find that it is possible [Cox] may be able to do something else.” The Tribunal found that this focus “spread too wide a net as to what could be ‘any’ employment” without considering same within the context of Cox’s education, training or experience”.

In terms of employment options suggested by the Respondent’s expert, the Tribunal did not believe that they were either suitable, or that if they were, Cox would have been capable of performing same. She has no degrees, diplomas or training, is not formally educated for any specific job, and her training and experience relates only to working in a restaurant.

The Tribunal also found it “noteworthy that the respondent paid IRBs for several years post-accident, including post-104 weeks.” This was “indication that the respondent believed that the applicant was suffering a complete inability… (with) the question of what really has changed since the respondent stopped the payments in early 2018.” Her health in fact was found to have deteriorated, with “very little evidence that she has in fact improved or turned a corner.”

Ambiguity in the SABS over EI Deductibility Remedied

EI Deductibility Ambiguity – In Spence v Aviva (19-013457), the parties disagreed over whether Employment Insurance (“EI”) sickness benefits are deductible as “gross employment income” from the IRB payable. Spence submitted that they were specifically excluded pursuant to s.4(1) and s.47(3) of the Schedule, whereas the Respondent countered that they were “gross employment income”, hence allowing for a deduction of 70% of same from the IRB payable, pursuant to s.7(3)(a). The Tribunal noted that under s.4(1), “gross employment income” is defined…and any benefits received under the Employment Insurance Act (Canada)…”. The Schedule then defines “other income replacement assistance” in s. 4(1)(a)(i) as “gross weekly payment for loss of income… other than, (i) a benefit under the Employment Insurance Act (Canada).”

The Tribunal further found that “there is genuine conflict in the Schedule as to whether EI sickness benefits can be deducted from an IRB.” While agreeing with the Respondent that “7(3)(a) presents a clear meaning of the legislature’s intent…the other sections of the Schedule that pertain to EI benefit deductions create ambiguity…”. There was conflict noted between the s.4(1) definitions of “gross employment income” (which includes benefits received under the Employment Insurance Act) and “other income replacement assistance” (which excludes benefits under the Employment Insurance Act)”. This was then “further obscured by the direction of s. 47(3)(a)(f)(i), which explicitly excludes benefits under the Employment Insurance Act as temporary disability benefits that can be deducted under s.47(1).

There was found to be “no direction in the Schedule, nor has authoritative case law been provided, that would suggest one section or definition on this issue has primacy over another in order to resolve this ambiguity. It was noted that “Surprisingly, this issue has never been squarely addressed.” Further, the Schedule “does not parse out the different types of benefits available under the Employment Insurance Act even though they are substantively different.” The Tribunal ultimately found that s.47(3) “demonstrates that the legislature intended EI sickness benefits to be treated differently….”.

The Tribunal was “not prepared to find that her EI sickness benefit was ‘employment income’ … it is, as the benefit is named, ‘employment insurance’.” This then served to explain “how the adjudicators in Nelson and S.W. were able to arrive at the conclusion that other EI benefits are deductible from IRB because EI sickness benefits are the only EI benefits captured under s. 47(3) as resulting from an ‘impairment’, whereas childrearing and unemployment are not.” The Tribunal further noted that “if the legislature did not intend to treat EI benefits differently, it would not have specifically included them as deductible under one section, and specifically excluded them as not deductible under another.”

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