Volume. 9 Issue. 25 – August 6, 2025
Post 104 IRB Confirmed despite 2+ Years Post MVA Employment
The Tribunal addresses a claim for post 104 IRB, in a matter wherein the Applicant had maintained employment for more than two years post MVA. The Tribunal considers the claim for post 104 IRB, noting that any alternative employment found suitable in this regard, must be employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity.
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Post 104 IRB Confirmed as No “Real World” Opportunities – Following a February 2020 MVA, the Applicant Al-Baik was able to maintain her full-time employment engaged in a regulatory management consulting role. In addition, she was successful enough at this role that, post-accident, she obtained a second concurrent full-time role with another company in the same industry. However, she was terminated from this 2nd role with the federal government in July 2022 and has been unemployed since. The insurer, Security National commenced payment of Income Replacement Benefits (IRBs), until such time as they terminated IRB June 30, 2023, based upon the results of a multidisciplinary set of IEs. At issue, in 23-010294 v Security National, was whether Al-Baik met the post 104 IRB test of a complete inability.
For the Applicant
Al-Baik contended that she met the complete inability test due to psychological impairments and chronic pain syndrome that had arisen as a direct result of the subject accident. She relied on the submitted OCF-3, the orthopaedic report of Dr. Getahun, the psychiatric assessment report of Dr. Shahmalak, the psychological assessment report of Dr. Aghamohseni, the clinical notes and records of family physician Dr. Patricia Lee and the neuropsychological report of Dr. Steiner.
For the Respondent
For their part, Security National denied that Al-Baik met the post 104 IRB disability test, as well as contending that her presentation was the result of falls subsequent to the subject accident or psychosocial stressors that arose unrelated to the accident. They relied on the labour market survey and vocational evaluation by Ruth Billet, the neurology report of Dr. Yahmad, the psychological report of Dr. Syed and the physiatry report of Dr. Ko.
Tribunal Findings
The Tribunal found that Al-Baik’s education, experience, and training suggested that she is best suited for employment involving regulatory affairs. Further, she persevered and attempted to work following the loss of her initial private sector role and, following a period of unemployment was able to obtain a job with a federal government department that was in the same regulatory field she had been working in. She continued in that role until she was terminated in July 2022. The relevant employment records confirmed that she was having difficulty meeting expectations and was ultimately terminated on that basis.
Applicant’s Assessors
The Tribunal was also persuaded by Al- Baik’s testimony and evidence that her chronic pain syndrome (“CPS”) negatively impacts her employability. The CPS resulted from the accident and resulted in symptoms that negatively impact the employability Al-Baik. The CNR from the GP served to demonstrate that “the consistent and pervasive symptoms the applicant is experiencing, including an aversion to screen time, an inability to concentrate, fatigue, and an inability to remain in a sedentary position. The evidence submitted regarding the applicant’s time in the role with the Government of Canada also demonstrate the implications of her symptoms on employment performance, with accusations of narcotic use, taking hours longer than policy allows for drive time to locations, attendance issues and issues with interacting with others.”
The Tribunal also agreed with Al-Baik’s assessors, as they “paint a clear and convincing picture of an applicant whose functional limitations have been worsening over time and who is struggling with pain. It is the resulting struggle with pain that negatively impacts the applicant’s ability to concentrate, attend, participate, and produce in competitive employment. I accept these opinions because the respondent has not advanced evidence sufficient to refute them.” In addition, accepting opinions that Al-Baik “would experience increased pain and stress, emotional dysregulation and likely lacks the mental function to attend, participate and produce in most work roles… that the applicant has a marked disturbance in energy, concentration and motivation.”
Respondent’s Assessors
The Tribunal was “not persuaded by Dr. Ko, who opined that from a physical perspective the applicant does not suffer a complete inability to engage in any employment for which she is reasonably suited, citing that the applicant worked full-time following the accident. The implication of the respondent’s three assessors’ findings, that only minor physical injuries exist more than two years post-accident, is that the applicant’s substantial and continuing pain complaints are not to be trusted. I disagree.”
The Tribunal noted that the Psychologist Dr. Syed “inferred that the applicant may not be trustworthy in relation to her reports of functional limitations and symptoms and opined that the applicant’s test results were unreliable and invalid. I do not accept the inference that the applicant’s reports cannot be trusted on the basis of Dr. Syed’s test results because the applicant has remained consistent and clear over a number of years with multiple assessors and care providers and similar testing by Dr. Steiner did not have the same validity concerns.”
Chronic Pain vs CPS
It was further noted that the “chronic pain diagnosis of Dr. Lee on February 10, 2020, is not in relation to the subject accident and is distinct from the CPS diagnosis. The Respondent pointed to Dr. Lee’s diagnosis of chronic pain on February 10, 2020, as evidence that chronic pain was pre-existing. I find the chronic pain and CPS diagnoses are different diagnoses and, while perhaps related, are distinct as the diagnosis from 2020 covers a period pre-accident where the Applicant was demonstrably functional and performing at work. Meanwhile, I find the CPS diagnosis comes at a time when the Applicant had been consistently complaining of significant, debilitating neck, shoulder, back and knee pain, which cannot be correlated, and she is either underperforming at her federal government role or is unemployed.”
Suitable Employment
It was noted that “Generally, Tribunal members have defined what constitutes reasonably suitable employment as “employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity. The work should also be comparable in terms of status and wages…I agree and apply this principle to this case.” Applying this principle, it was found that the “roles proposed by the respondent are not comparable in terms of status and wages.”
Issues with Vocational Evaluation
The Tribunal took issue with the fact that there was “no analysis that provides insight into why the alternative vocational options suggested by Ms. Billet, for example, “Administrative Officer” and “Biological Technician,” may be suitable. The roles proposed by Ms. Billet all require a college, vocational education, or apprenticeship training, which is not comparable to roles requiring a university education, which the applicant previously held. The combination of a lack of analysis or reasoning for the suggested alternative employment, the lack of transparency in the aptitude testing and the diminished educational requirements of the proposed suitable roles leave me questioning the reasonableness of the alternative suggestions.”
Post 104 IRB Confirmed
Concluding, the Tribunal was satisfied that Al-Baik had “demonstrated that she would not be able to reasonably fulfill the expectations of reasonable hours and productivity. The employment records from the applicant’s federal government role demonstrate that the applicant was having difficulty meeting expectations and was ultimately terminated on this basis. The CNRs of Dr. Lee demonstrate that the applicant is regularly seeking notes to support time off work in relation to symptoms the applicant is experiencing as a result of the subject accident. The Dr. Lee CNRs also demonstrates the consistent and pervasive symptoms the applicant is experiencing, including an aversion to screen time, an inability to concentrate, fatigue, and an inability to remain in a sedentary position; all of which would negatively impact the applicant’s ability to reasonably fulfill the expectations of a real-world employer.”
Accordingly, Al-Baik had demonstrated, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
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