Volume. 9 Issue. 17 – May 28, 2025
CRA Records not Necessarily Determinative Absent Corroborating Documentation
This week the Tribunal determines whether an Applicant is entitled to both pre and post 104 IRB. As well, consideration is given to the fact that the Applicant refiled taxes with the CRA, that, if accepted, would increase the weekly IRB rate.
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Revised CRA Filing Not Accepted – Injured in a February 2023 MVA, the Applicant Guan, in 23-014551 v Co-operators, sought entitlement to both pre as well as post 104-week IRB, at the rate of $400/week, in addition to a lengthy list of denied medical benefit submissions. Co-operators had paid IRB at the rate of $169/week from February 17, 2023 to November 17, 2023 and again from April 21, 2024 to January 18, 2025. Accordingly, Guan specifically sought IRB (at the increased rate) from November 18, 2023 to April 20, 2024 and January 19, 2025 to February 7, 2025. The Tribunal ruled, on pre 104 entitlement, the appropriate quantum and lastly on post 104 IRB entitlement.
Pre 104 IRB Entitlement
Applicant’s Evidence
It was Guan’s assertion that she was unable to continue working as a massage therapist given she had generalized “pain everywhere”, specifically in her neck, shoulder, lower back, legs and numbness in her right hand. She also complained of dizziness, nausea and headaches since the accident. Guan relied upon an in-home functional assessment report confirming that she suffers from unresolved pain, neurological symptoms and other psycho-emotional and cognitive barriers in addition to an ACB report confirming that her functional deficits include an inability to complete her full-time job as a massage therapist. As well, a psychological assessment report, that found that she is not currently considered to be capable of attending work on a consistent and reliable basis and would not be reasonably capable of coping with her work-related tasks or demands as a massage therapist and suffers from a substantial inability to perform the essential tasks of her pre-accident employment.
Respondent’s Evidence
For the initial IRB stoppage, Co-operators relied upon a physiatrist report that concluded Guan was fully capable of resuming her previous work as a massage therapist, without any physical restrictions or functional limitations. However, in April 2024 they reinstated IRB on a without prejudice basis pending receipt of IE reports. For the subsequent stoppage of IRB Co-operators relied on three IE reports, including a psychological report from Dr. Day. He found that Guan had suffered from a major depressive disorder, however, she was able to perform her pre-accident employment tasks. There was reliance upon reports of Dr. Ismail, physiatrist, and Dr. John, neurologist, to support the capacity to perform the pre MVA employment duties.
The Tribunal’s Take
The Tribunal found that the reports Guan relied upon described impairments consistent with an inability to perform essential tasks of a massage therapist. The three reports relied upon “document over a period of time a substantial inability of the applicant to perform essential tasks as a massage therapist. We find the reports to be persuasive as they utilized objective functional and psychometric testing and demonstrated consistency in findings over the period of time between the reports.” In contrast, the Tribunal did not find the assessments on the part of Co-operators to be persuasive on the issue of a substantial inability.
Issues With Respondent’s Experts
With respect to the earlier physiatry report relied upon initially, it was the opinion of Dr. Zabieliauskas that there was no physical impairment of function of any kind, and that Guan was fully capable of resuming her previous work as a massage therapist, without any physical restrictions or functional limitations. However, the Tribunal was “not persuaded by his conclusions because his assessment did not address the ability of the applicant to stand for lengthy periods of time or the stamina required to perform repetitive physical tasks of massage therapy for a prolonged period of time. Further, this report was inconsistent with the OT occupational IE report that which indicated that Guan relied on a standard walker for walking, that she demonstrated poor balance ambulating with the walker and that she could stand for 5-10 minutes with support.
Entitled to PRE 104 IRB
As for the subsequent IEs, the Tribunal found them not to be persuasive, as they failed to address Guan’s inability to stand for long periods of time or the stamina required to perform repetitive physical tasks of massage therapy for a prolonged period of time. Additionally, the reports failed to address the ability of Guan to stand for long periods of time or the stamina required to perform repetitive physical tasks of massage therapy for a prolonged period of time. Furthermore, the “assessors own objective findings indicate that the applicant is experiencing physical limitations that would preclude her from the rigorous demands of being a massage therapist.” Accordingly, the Tribunal concluded that Guan had proven on a balance of probabilities that she is unable to perform the essential tasks of her pre-accident employment and has therefore established entitlement to the 104 week mark.
IRB Quantum
Guan submitted, based upon a CRA refiling, that she was in fact entitled to pre-104 week IRBs of $400.00 per week based on her revised 2022 self-employment income. For their part, Co-operators maintained that Guan had failed to provide reliable financial documents and evidence of 2022 income to support pre-104 week IRBs in the amount of $400.00 per week. IRB had initially been approved at the rate of $169/week, based on the T4A and Notice of assessment which indicated that the self-employment income was $12,532.00 in 2022. However, in 2024, the Guan re-filled her 2022 taxes and provided Co-operators with an updated 2022 Notice of Assessment showing her 2022 declared income as $30,000. Guan submitted that her entitlement to IRBs should be based on her updated income of $30,000 which would equate to a weekly IRB quantum of $400.00 per week.
Guan’s Evidence
Guan relied upon an accounting report that reviewed 2022 banking statements, noting that 2022 deposits in the bank account exceeded $66,000.00, The accountant “found that it is plausible to conclude the applicant earned at least $30,000.00 in business income in 2022.” However, the Tribunal placed little weight on the report as “we do not find that the applicant has provided reliable financial documentation and evidence to support the increase in 2022 income from $12,532.00 to $30,000.00.”
Issues With Documentation
The Tribunal found that Guan failed to point to any evidence identifying which deposits, if any, related to self-employment income. At an EUO, Guan indicated that “some deposits came for gains at the casino and some came from tips, however, she was unable to identify which items were from tips. Further, during the applicant’s testimony at the hearing, she was unable to confirm the source of certain highlighted deposits during questioning by her counsel. As such, the applicant was unable to verify which deposits related to self-employment income in the applicant’s bank account over the period of January 1, 2022 to December 31, 2022.
In addition, other documentation reviewed was found not reliable, including an invoice Guan produced dated December 31, 2022 “in which she purported to bill to Spa $30,000 for services rendered in 2022. However, on cross-examination the applicant confirmed that this invoice was not prepared until sometime in 2024 after her 2022 amended tax return was filed, and further that the invoice purporting to be from the applicant to Spa was actually prepared by Spa. Furthermore, we find that the invoice lacks necessary detail regarding the services that were provided during 2022. The invoice does not indicate any dates or times of the alleged massage services or how the $30,000 was accrued.”
Quantum Unchanged
Accordingly, the “quantum of pre-104 week IRBs is $169.00 per week. As the applicant has already received IRBs in the amount of $169.00 per week from February 17, 2023 to November 17, 2023 and again from April 21, 2024 to January 18, 2025, it follows that she is entitled to IRBs in the amount of $169.00 per week from November 18, 2023 to April 20, 2024 and from January 19, 2025 to February 7, 2025.”
POST 104 IRB – Not Entitled
The Tribunal found that Guan had offered no submissions to demonstrate her entitlement to post-104 week IRBs. There was no evidence presented as to her education, training or experience to show the scope of work that she is reasonably suited to engage in. A letter from her doctor indicating that she cannot return to work does not address the post 104 entitlement test. Accordingly, as Guan “provided no further submissions or evidence regarding post-104 IRBs, we find that the applicant has not established on a balance of probabilities that she is entitled to post-104 week IRBs for the period February 8, 2025 to February 17, 2025.”
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