Volume. 6 Issue. 24 – June 22, 2022

Interesting IRB considerations are on tap this week. In ‘Pre 104 IRB Entitlement Established 3.5 years Post Accident’, a preliminary issue hearing, the Applicant submitted a disability certificate 3.5 years post MVA, in an effort to establish entitlement to pre 104 IRB, with at least some initial success.

Then in ’13 Year IRB Claim Continues’, the insurer tried, ultimately unsuccessfully, to terminate IRB after having paid same for 13 years.

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Pre 104 IRB Entitlement Established 3.5 Years Post Accident

Injured in an October 2016 MVA, the Applicant Katsaros, in 20-010657 v TD Insurance, submitted a November 1, 2016 OCF-1 that indicated in part that he had returned to work after a five day absence. On December 1, 2016, TD wrote Katsaros to advise that he was not eligible for IRB as he had returned to work within 7 days of the accident. In addition, TD requested a disability certificate (OCF-3) to determine further eligibility. In response, Katsaros submitted OCF-3 forms in February and May 2017, each indicating that Katsaros did not suffer a substantial inability to perform the essential tasks of his employment, but that he did suffer a complete inability to carry on a normal life (NEB). Following a series of IEs, TD advised Katsaros that he did not qualify for NEB.

Subsequently, in April 2018 Katsaros stopped working and began to receive STD benefits from his employer, transitioning to LTD benefits in August 2018. It was not until July 28, 2020, that Katsaros submitted a third disability certificate (OCF-3), this time indicating that he had last worked on April 5, 2018 and that within 104 weeks of the accident, he suffered a substantial inability to carry out the essential tasks of his pre-accident employment.

TD contended that Katsaros failed to properly apply for an income replacement benefit because he did not submit a disability certificate establishing that he suffered a substantial inability to carry on a normal life within 104 weeks of the accident. Further, that Katsaros was “improperly trying to retroactively establish entitlement to the benefit”, and finally that the application to the Tribunal was more than 3 years after the initial denial, hence was statute barred.

The Tribunal noted that established jurisprudence did not require an OCF-3 to be “positive” for the specified benefit sought in order to be considered as “complete”. Further, upon reconsideration, the Executive Chair in 17-000388 confirmed that a disability certificate produced beyond the 104 week mark could be used to establish entitlement to pre 104 IRB. While “In the ordinary course, one’s evidence proving this sort of claim will be generated within the initial 104-week period. But there may also be evidence generated later…. Conceivably, evidence generated after the 104-week mark may inform that inquiry.”

It was confirmed that if Katsaros was able to establish disability within the 104 weeks post accident, said eligibility would be capable of grounding a post 104 week entitlement. The Tribunal “appreciate(d) that the absence of a clear deadline to apply for an income replacement benefit deprives an insurer of a measure of finality. However, the length of time it takes an applicant to initiate a claim for an income replacement benefit will ultimately bear upon his ability to meet his evidentiary onus.” Further, “any disadvantage suffered by the respondent in being able to obtain timely medical assessments of the applicant’s impairments is better addressed as a matter of weight in a full evidentiary context.”

The Tribunal further found that Katsaros’ claim was not statute barred. Following the reasoning in Varriano v. Allstate, none of the denials relied upon by TD were valid, therefore neither triggered the limitation period.

Once again it was reaffirmed that “Simply stating that an insured is ineligible for the benefit owing to a return to work does not satisfy the notice requirement, because it prevents the insured person from understanding whether their impairment is at issue.”

13 Year IRB Claim Continues

The Applicant Silva, injured in a May 2006 accident, received IRB for approximately 13 years, at which time entitlement ceased based upon a series of s.44 assessments. The IEs, in 20-007232 v Wawanesa, indicated that Silva does not have any physical limitations or restrictions that prevent him from returning to work, does not have any psychological impairments, and was capable of light duties, although the assessor could not opine as to whether an 8 hour day was feasible. A series of light duty jobs were recommended as suitable employment options, and Silva no longer met the post 104 IRB test.

Silva was 29 years old on the date of loss and was making $30 per hour in an extremely heavy labour intensive constructive job, advancing his career over the years through on-the-job training. He relied upon the opinion of his treating physician, in addition to various disability certificates confirming permanent nerve damage and chronic low back pain. The Tribunal relied upon the opinion of Silva’s physician, since he had been treating him for nine years, has direct knowledge of Mr. Silva’s capabilities and inabilities.

Wawanesa’s expert was found to have failed to account for Silva’s pain complaints, as he indicated “he does not canvas the individual regarding their pain intensity. He said that he finds there is no good correlation between pain and functionality. He stated that pain is subjective: some people choose to work despite the pain, and others do not.” The Tribunal however found there was “absolutely a correlation between the level of pain one feels and their functionality.”

Ultimately, the Tribunal concluded that “the question in this hearing really comes down to whether Mr. Silva can be competitively employed and whether he can maintain employment.” Wawanesa relied upon 21 days of surveillance, during which Silva was seen only six times, performing noticeable activities on five occasions. The Tribunal agreed that Silva demonstrated some capabilities, however Silva had admitted that over the past 15 years he could perform the captured activities, however “when he does complete physical activities, he will end up paying for it. It results in him taking more painkillers or resting on a couch for several hours or days.”

The Tribunal did “not see a correlation between his ability to do some activities for short periods of time and his ability to work in a full-time position…he does not possess enough abilities to remain competitively employed.

Given his impairments, Silva was found “unsuitable for any employment. He is not capable of providing predictable and reliable employment, a basic expectation of any employer.” Further, the prospective jobs suggested by Wawanesa “did not factor in any real-world components. This would include a labour market survey that considers whether there are vacancies, are those vacancies within a reasonable commuting distance to Mr. Silva’s home, wages commensurate with what Mr. Silva previously made, and actual job requirements.” Noting Silva’s prior wage rate of $30 per hour, with no experience in any of he recommended entry level jobs, it was reasoned that he would not make more than minimum wage.

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