Volume. 7 Issue. 36 – October 4, 2023
This week, the Tribunal considers whether an Applicant, who has remained employed in some respect for more than three years post MVA,can establish entitlement to post 104 IRB. This included the Tribunal’s in – depth consideration of related jurisprudence, specifically referencing “A suitable alternative occupation must be reasonably comparable to the insured’s former job both in status and reward”.
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?
Post 104 IRB Confirmed Despite Ongoing Employment – Injured in a November 2018 MVA, the Applicant McLean, in 22-001804 v Primmum Insurance, sought entitlement to post 104 Income Replacement Benefits (IRB). Primmum had paid IRB through to August 2021, when they ceased payment of IRB based upon the conclusions of their IEs.
The IEs confirmed that McLean could work as a recreation program coordinator or a teaching assistant. At the hearing, Primmum submitted as well that McLean’s impairments are the result of a 2017 motor vehicle accident and that, because she is able to work five hours per week, it is not required to pay any more IRBs.
Disabled Pre MVA
In an August 2019 psychological report, it was noted that in the earlier 2017 MVA, McLean had post-traumatic stress disorder (“PTSD”), specific phobias; Depressive episode; post-concussion syndrome; and Nervousness, all of which were exacerbated by the 2018 accident and a near accident in 2019. Following the 2017 MVA, McLean worked at Mohawk College as a part-time professor teaching recreation therapy one to six hours per week and as a field placement specialist 15 to 24 hours per week. Following the 2018 accident, McLean was able only to work 6 hours per week as a part time professor. McLean submitted that she was entitled to IRB ongoing, given that she was now working only 6 hours per week, as opposed to 20-30 hours per week prior to the MVA.
Court – Criteria For Alternative Occupation
The Tribunal noted that it was “bound by Burtch v. Aviva and the proper principles in interpreting s.6(2)(b) that were identified by the Court of Appeal as follows:
i. A suitable alternative occupation must be reasonably comparable to the insured’s former job both in status and reward;
ii. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required; and
iii. While the primary focus in determining whether a job is a suitable alternative is on the insured’s functional limitations, job market considerations are also relevant.”
Following the hearing, “the Divisional Court decision of Traders General Insurance Company v. Rumball, came to my attention and I asked the parties for their submissions on that case and on the Court of Appeal decision of Constitution Insurance Co. of Canada v. Coombe.” The Court in Rumball stated that Burtch did not endorse the three criteria above as the proper principles for reasonable post 104 employment. It was further noted that leave to appeal to the Court of Appeal has been granted in Rumball.
Earnings and Status Essential for Qualified Employment
McLean submitted that Rumball ignored the Court of Appeal in Coombe, “that the judicial interpretation of total disability as being reasonably comparable to the old occupation in status and reward and reasonably suitable in work activity in light of education, training and experience does not place a burden on an insurer to show that an insured person is receiving similar compensation, but that the insured person is capable of entering into an occupation that is reasonably suitable in status and reward.”
Court of Appeal Binding
The Court of Appeal in Coombe “determination of the factors to consider when interpreting whether employment for which the insured person is reasonably suited by education, training or experience is binding on me. Accordingly, I find that in determining whether the applicant in this case is reasonably suited by education, training or experience for any employment, the work should also be comparable in terms of status and wages.”
The Applicant further relied upon the Tribunal in 16-00874 v. Certas, which pointed out that “it is well established in the jurisprudence that reasonably suitable employment in insurance policies means the work should be comparable in terms of status and wages. I agree with the Tribunal that the jurisprudence has been well established that reasonably suited employment should be comparable in status and reward. The Court of Appeal has not reversed its 30 year recognition of these principles and, accordingly, I am unable to find that Traders v Rumball means that Constitution v Coombe was reversed and is no longer binding on me”.
Working Does Not Disentitle
Primmum submitted that “an ability to work at 25% to 30% percent capacity of the pre-accident hours at any suitable employment is not a complete inability.” The Tribunal agreed with this proposition, however only in the event that “the income and status from the reduced hours is comparable to the pre-accident income.” The Tribunal also noted that working beyond the 104 week period does not disentitle an insured person from claiming they are completely disabled from working. Otherwise, the Schedule would not have accounted for the deduction of post MVA earnings in the post 104 period.
Complete Inability by Analogy
It was then noted that “complete inability” is only defined within the context of entitlement to Non Earner Benefits (NEB). The Tribunal reasoned that were that definition to be applied to the post 104 “complete inability”, “by analogy, the test for post-104 week IRBs is whether the applicant sustains an impairment that continuously prevents her from engaging in substantially all of the essential tasks of the employment that is reasonably suited based on her education, training and experience.” Accordingly, if one is “only able to work at 30% capacity of a specific employment compared to her pre-accident capacity, then I fail to see how the person can be engaging in substantially all of the essential tasks of that occupation.”
32% Decrease in Earnings Disqualifies “Reasonable Employment”
With respect to employment identified by Primmum’s vocational expert, said employment was “not suitable for the applicant as it does not carry the same status and provides for significantly less income than the applicant was earning pre-accident if she were to work the same hours as she was capable of working pre-accident.” The Tribunal calculated there to be a decrease in income of roughly 32% over prior earnings. Primmum’s medical expert agreed that McLean could only work 6 hours per week, however opined that this ability meant that she did not suffer from a complete inability. Given the aforementioned discrepancy in earnings, the Tribunal simply found that the expert “misunderstood what the post-104 week test means”.
Post 104 IRB Confirmed
The Tribunal further found that McLean’s continued engagement in one of her pre-accident positions is evidence that the applicant has made attempts to continue working and was satisfied that ongoing attempts at working at a job similar to that identified by Primmum’s expert serve to prove that McLean has a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience.
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