The Licence Appeal Tribunal has recently found that an applicant meets the test for post-104-week income replacement benefits despite currently engaging in part-time employment.

Laura McLean, who was involved in a motor vehicle collision on November 18, 2018, received income replacement benefits up until August 19, 2021. She claimed ongoing entitlement to the income replacement benefit but was denied as it was the insurer's position that since she can work five hours per week, it is not required to make any further income replacement benefit payments. Further, the insurer denied receiving any evidence that would point to the fact that Laura has met the post-104-week IRB test.

THE POST 104 WEEK INCOME REPLACEMENT TEST

For an Applicant to meet the test for post 104-week IRBs, he/she must demonstrate on a balance of probabilities that he/she suffers from a complete inability (see definition further below) to engage in any employment or self-employment for which he/she is reasonably suited by education, training, or experience.

The Court of Appeal in Burtch v. Aviva1identified three principles to properly interpret the test above. They are as follows:

  1. A suitable alternative occupation must be reasonably comparable to the insured's former job both in status and in reward.
  2. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required.
  3. 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.

WHAT IS A COMPLETE INABILITY?

As Adjudicator Deborah Neilson put it in this decision, the only definition of a "complete inability" in the Statutory Accident Benefit Schedule (SABs), is in the definition of a complete inability to carry on a normal life, in the context of non-earner benefits (weekly payments made to accident victims who are unable to recover wages due to injuries sustained in an accident). In this regard, "a person suffers a complete inability to carry on a normal life if they sustain an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged in before the accident2".

Adjudicator Neilson applied this definition to s.6(2)(b) of the SABs by analogy and found that 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"3. [emphasis added].

In this case, despite Laura's ability to work 25%-30% of her pre-accident hours, it is the income and status of the job position that she is working those hours that allow her to fall within the definition of a complete inability.

Importantly, Adjudicator Neilson states that working at 30% capacity of a specific employment, compared to previous capacity is in fact not indicative of "engaging in substantially all of the essential tasks of that occupation"4.

The insurer had Laura examined by a vocational evaluation expert who prepared a report recommending jobs that she is reasonably suited for. However, the expert did so without knowing Laura's hourly wage prior to the accident, therefore it was not given much weight.

Additionally, the expert stated that Laura could work as a teaching assistant or a recreation program coordinator. Adjudicator Neilson took issue with the fact that these two positions are significantly lower in pay and status in comparison to Laura's previous occupation as a professor.

ORDER

Since August 19, 2021, Laura has had a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. Therefore, she is entitled to post 104-week IRBs.

CONCLUSION

Despite the insurer taking the position that Laura is capable of working more than five hours a week, and despite Laura working 25%-30% of her pre-accident work hours – the income and status of her current job title is what has allowed her to continue to be eligible for income replacement benefits, specifically, post 104-week income replacement benefits.

Footnotes

1. Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 (CanLII)

2. Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 3(7)

3. McLean v. Primmum Insurance Company, 2023 ON LAT 22-001804/AABS para. 44

4. McLean v. Primmum Insurance Company, 2023 ONLAT 22-001804/AABS para. 44

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.