Volume. 7 Issue. 33 – September 13, 2023
This week an IRB case, where the Respondent’s ultimate delay of paying IRB for a period of four years, having paid same two weeks prior to the hearing itself was worthy of an award.
As it seems pre 104 IRB was eventually conceded, the Tribunal only dealt with the post 104 IRB to date and ongoing. On the issue of the delay, the Tribunal levied a 20% award against the Respondent, finding the payment, albeit four years late, to be a mitigating factor.
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?
IRB First Paid Two Weeks Prior to Hearing
IRB Delayed Four Years Garners 20% Award – Injured in a December 2016 MVA, the Applicant Hasan, in 20-010115 v Certas, initially sought IRB from the date of loss through to February 9, 2019 at the rate of $400, however this issue was withdrawn. While not entirely clear, it would appear that Certas at some point conceded entitlement through to the latter date.
The remaining issues then were entitlement to IRB from February 9, 2019 to date ongoing, in addition to an award being sought as against Certas. Accordingly, at issue was the narrow matter of post 104 IRB entitlement, involving the “complete inability” test. Ultimately, the Tribunal was satisfied that Hasaan had satisfied the burden, with IRB awarded for the period sought and ongoing, at the rate of $185 per week.
Applicant’s Evidence
The Tribunal found much of Hasan’s evidence to be clearly lacking, to the point of commenting that “it is not the role of the adjudicator to make the applicant’s case. Simply entering reports as exhibits does not, in and of itself, meet the applicant’s burden of proof.” However, fortunately for Hasaan, the evidence of her treating psychiatrist, Dr. Suddaby, was sufficient to establish entitlement to the IRB sought. The expert concluded that Hasan “as a direct result of the psychiatric injuries caused by the (accident), suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience’. The Tribunal further “was not pointed to any compelling medical evidence that would cause me to doubt Dr. Suddaby’s analysis and conclusion on causation factors.”
Complete Inability
For their part, Certas pointed to numerous unrelated mental health triggers, however, the evidence did not establish that any had “caused sufficient mental distress to doubt (the expert’s) conclusion that the accident was a necessary cause of the applicant’s psychological impairments.” The expert confirmed that it was not at all probable that Hasan would experience significant improvement and thus be unable to work in any capacity for the foreseeable future. Dr. Suddaby testified that Hasan was housebound for weeks on end, experienced delusions, had limited concentration and no tolerance for stress.
The Tribunal found that “Given the applicant’s delusional symptomology in particular—and considering its prognosis as well as its reportedly unpredictable and, in my view, disturbing and intrusive nature—I cannot fathom how the applicant could engage in any employment whatsoever, regardless how suitable it may be to her education, training and experience.” With respect to Certas’ expert, the Tribunal was “not persuaded by a global analysis of the applicant’s impairments that is based only on extrapolating observations made over a period of several hours, with no complementary analysis of the applicant’s considerable medical history.”
Award – Four Year Delay
Turning then to the claim for an award, the Tribunal found for a fact that Hasan had proven that by October 2018, Certas “had everything it needed to calculate and pay the applicant an (IRB)”, well before remittance was made, and that there was no good reason for delaying that payment.” This, to be understood in the context of Certas having paid out the entirety of the applicant’s pre-104 IRB, about two weeks before the hearing being on or about November 21, 2022, roughly four years since October 2018 when Certas had all outstanding information required to pay IRB.
Certas had argued that Hasan “never established entitlement to an IRB during the pre-104-week period in accordance with the (Schedule) by concurrently failing to provide a disability certificate evidencing entitlement and failing to provide the financial information required to calculate the benefit.” However, the representative for Certas testified that there were in fact two disability certificates on file, both having been received within 104 weeks of the MVA. In addition, issues surrounding IRB quantum had been addressed satisfactorily no later that October 2018.
Pre 104 IRB 20% Award
As a result, Certas was found “imprudent in its handling of the pre-104 payment, in that it did not show due care for the consequences of withholding payment of the IRB. The duration of the non-payment period—about four years—is an aggravating factor”. However, this was not seen as the result of maliciousness or bad faith intentions. Rather, “the evidence here supports an extended period of inadvertently poor case management that resulted partly from a lack of due care and attention, and partly due to adjuster continuity issues.” Therefore, an award of 20% of the pre 104 IRB was levied.
No Award Post 104 IRB
With respect to post 104 IRB, the Tribunal however found that Certas was allowed to rely upon the opinions of their assessors when evaluating benefit entitlement. Further, while acknowledging “the “overarching failures” argued by the applicant, I did not find those concerns to be relevant to deciding whether a payment is unreasonably withheld or delayed. Rather, these would be the types of factors to help inform the value of the award, should it be ordered.”
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