Volume. 7 Issue. 34 – September 20, 2023
This week the Tribunal considers whether an Applicant is required to produce “expert evidence” in order to establish IRB entitlement. Ultimately, it was determined that the 65 year old Applicant was entitled to the entirety of the four year IRB availability in accordance with s.9(1)(b) of the Schedule.
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?
Expert Opinion Not Required for IRB Entitlement
Four Years IRB for 65 Year Old – In 21-013750 v Aviva, Bercal was Injured in a February 2019 accident, Bercal, 65 years old on the date of loss, sought ongoing entitlement to Income Replacement Benefits (IRB). Bercal was employed for approximately 28 years at an automobile parts factory, assembling car roofs and packing parts in boxes. IRB was paid through to November 2019, at which time it was terminated based upon the results of Insurer Examinations (IEs).
It was the position of Aviva that Bercal had not experienced continuous neck and back pain, pointing to the fact of no related reports of pain from September 2019 through to October 2021. The Tribunal did not accept this line of reasoning, indicating that the “more likely explanation is that when pain became a constant presence in the applicant’s life, she did not see the need to continually report it to her doctor. When she saw her family doctors for other issues such her diabetes, her baseline neck and back pain were not relevant and likely did not come up.”
Accordingly, the Tribunal found that Bercal met both the pre- and post-104 week tests for an IRB. It was noted that prior to the termination of IRB Bercal had “attempted to return to work on modified duties, but was refused because no such work was available. This indicates that she sincerely did want to keep working.” Bercal’s “education, training, and experience imply that she was reasonably suited for work similar to her job at the automobile parts factory, with comparable physical demands such as prolonged standing and repetitive bending and lifting.”
Aviva had further argued that Becal would not have worked during the COVID-19 pandemic even if she had not been injured. Becal had testified that “the automobile parts factory closed at the start of the pandemic and she stopped looking for work, and that she was afraid to go out until around the end of 2022.” The Tribunal, though, agreed with Bercal that this was not relevant, as the only issue is whether the injuries sustained prevented a work return. The fact that the pandemic might otherwise have precluded a return to work would not disentitle her to IRB.
Aviva also submitted that Bercal was obliged to provide expert evidence to meet her burden of proof. To that end, Aviva noted that one of Bercal’s experts did not comment on the ability to work, while the second “made only a vague, unsupported statement that she met the pre-104 week test for an IRB.” Bercal contended that Aviva’s expert’s “findings about her functional abilities prove that she meets the tests for an IRB even though he opined that she was substantially able to perform the essential tasks of her job.” The Tribunal did not agree that Bercal “cannot satisfy her burden on proof without an expert opinion stating that she meets the tests for an IRB…Whether the applicant meets these tests is a legal question, not a medical question.”
The Tribunal also did not accept the opinion of Aviva’s assessor that Bercal was substantially able to perform the essential tasks of her job. He had found that Bercal was “impaired in her ability to lift heavy objects and maintain a prolonged posture.” He failed, however, to “state whether he understood lifting heavy objects and maintaining a prolonged posture to be essential job tasks, or whether the applicant would be able to perform those tasks given the impairments he identified. Had he turned his mind to those issues, he might have reached a different conclusion. Therefore, Bercal was entitled to IRB to the end of the four year eligibility period in accordance with s.9(1)(b) of the Schedule.
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