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 Volume. 7 Issue. 31 – August 23, 2023


This week, the Tribunal considered whether an Applicant involved in a WSIB facilitated Work Transition Program (WTP) on the date of loss would qualify for IRB following an accident. In the case at hand, the Applicant was rendered CAT as a result of the MVA and was unable to continue the WTP.



LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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WSIB Placement Qualifies for IRB

Work Placement Constitutes “Employment” – At the time of the October 2018 accident, the applicant Coban was in a work placement as part of a Work Transition Program (WTP) facilitated by the WSIB. Coban, in 21-012430 v Allstate, rendered CAT as a result of injuries sustained in the accident, sought entitlement to Income Replacement Benefits (IRB). He had been working 37.5 hours per week through to August 31, 2018, earning $651.61 weekly. Thereafter, his hours reduced to 8 per week, while he continued his 3rd year studies in the Architectural Technology program. Following the accident, as Coban was unable to continue working, the WTP was discontinued, and weekly benefits ceased November 5, 2018. However, Allstate took the position that Coban “was not “employed” due to the fact that his placement was part of a vocational rehabilitation program arranged through WSIB and he was in receipt of disability benefits rather than “employment income” during the relevant pre-accident interval.”

Coban relied upon the Divisional Court in Kawa Arab v. Unica Insurance, wherein it was concluded “that to be employed under the SABS for the purposes of determining IRB entitlement requires that an insured be (a) in an employment relationship, and (b) entitled to receive remuneration therefrom.” In addition, a prior case of the Tribunal, T. M. v Aviva General Insurance, that indicated “the Schedule uses the term “employed” in two senses. One is in the sense of being in an employment relationship. The second adds a need to be remunerated as remuneration is the basis for calculating entitlement. The current, applicable Schedule is silent on what constitutes a person being employed, thereby leaving the meaning open to interpretation. I find this broad wording should be interpreted in favour of the insured as intended by the consumer protection legislation mandate of the Schedule.”

Allstate countered that Coban’s WSIB benefits were “not contingent in any way upon the number of hours worked for COLE (the placement employer) during a particular interval. Further, payments received were contingent on his co-operation with all aspects of a labour market re-entry assessment or plan, and not upon the performance of any particular number of hours or duties for the applicant.” Further that “WSIB, not COLE had final say over what duties the applicant was to be performing as part of his work placement. The respondent states that it is the WSIB that demands that the applicant is to apply his architectural technician training and related skills to the job he is placed at. That is, WSIB, not the employer, is in control of the applicant’s duties.”

The Tribunal though was “persuaded that the applicant had an employee/employer relationship with COLE. While the WSIB had the pre-condition that the applicant was required to work where he could apply his architectural technician training and related skills, the employer defined the role and job duties. The purpose of the job search was to find an employer that could provide the position that suited the applicant’s training.” This was further confirmed by the fact that Coban was required to perform the duties of the role of Project Administrator as stated in the Memo from the RTW as to the job description provided by COLE, as well as report to his supervisor at COLE who worked with WSIB to ensure Coban was performing the duties of his placement.

As a result, the Tribunal concluded that Coban “was employed at the time of the accident, and that the responsibilities he was required to perform created an employee/employer relationship… he was required to perform the duties of the job that he was hired to do. The stipulation by the WSIB that the job utilize the skills he is in training for with regards to his education is only reasonable and doesn’t preclude the employer from managing the applicant like any other employee.”

Concluding, Coban “received remuneration from WSIB and I am persuaded that this remuneration was for employment. The Schedule provides the interpreter with the ability to be just and reasonable, and it is reasonable to connect the remuneration from WSIB directly to the employment with COLE. I find that the applicant is entitled to Income Replacement Benefits (IRB).”



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Archive of LAT Updates

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April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

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April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

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April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

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April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

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March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

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March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

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March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

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March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

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March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

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March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

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March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

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February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

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December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

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December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

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November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

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November 22, 2023: Multiple IEs Excluded From Evidence

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November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

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November 15, 2023: Court Applies Tomec & CAT Decision Varied

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November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

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November 8, 2023: Maximum Award in Excess of $60K on CAT Case

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November 6, 2023: Medical Evidence Overrides Legal Referrals

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November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

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October 30, 2023: Which MVA Exacerbated Injuries?

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October 25, 2023: Application Seeking CAT Determination an Abuse of Process

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October 23, 2023: Functional Disability Despite 50 Hour Work Week

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October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

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October 16, 2023: Injuries Not Static - MIG Determined Again

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October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

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October 2, 2023: ‘IE’ Does Not Establish Causation

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