Volume. 3 Issue. 42 – November 27, 2019

Are You Employed, Self-employed or “Deemed” Employed?

In 3 cases, the Tribunal considers what constitutes “self-employment”, an interesting take on “deemed employed” and a work return to a different job that confirms no further IRB entitlement.

Controlling Mind – In 19-000026 v Economical, the Tribunal found it clear that the Applicant operates as a self-employed person, as defined by the Schedule, despite the Applicant’s contention that he was merely an employee. He was a shareholder of a beauty salon, reported a consistent salary that did not fluctuate over three years, did not pay employment insurance and is able to control his hours of work. All of these facts were “compelling indications that [the Applicant] is self-employed and, indeed, a ‘controlling mind’ of a beauty salon”.

Further, he “is able to make executive decisions on the business, like renting a chair at a beauty salon or controlling his hours of work, which, in my view, makes him both a shareholder and controlling mind and, therefore, considered self-employed for the purposes of calculating an IRB”.

Not working, But Employed? – In 18-000865 v Pembridge, despite having worked only 20 weeks with his employer in the prior year, the Applicant was found in fact to have been employed for 26 of 52 weeks. The Tribunal relied heavily on a 1997 FSCO case, Madore and Co-operators, in which the Arbitrator stated, “individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence…being employed depends as much upon the intentions of the employer and the employee and the expectations between them, as upon the payment of salary in return for specified work.” In the cited FSCO case, the claimant was found not to be employed, despite having a ten year prior work history with the same employer.

In the case at hand, the Tribunal found, “Taken collectively, the ROE, the OCF-2, the EI application, and the sick notes in the record before me indicate that the employment relationship continued during the period of illness.” The Applicant ceased working in February 2015, with the Respondent arguing that a ROE that indicated that the Applicant ceased working due to illness, which severed the relationship with the Applicant. However, as the ROE indicated an anticipated return date of March 21, 2015, and further exchanges of e-mails in June 2015 and sick notes from the doctor through August 2015, the “employment” was found by the Tribunal to extend through to that time.

Given that this is a preliminary issue, the Respondent will have no recourse to contest this finding until such time as the substantive IRB appeal is heard.

Same Job Different Locale – In 18-007878 v Travelers, the Tribunal considered the insurer’s claim for repayment of IRB given the insured’s having returned to work in April 2017 following a November 2016 accident. Prior to the accident, she had worked as a registered practical nurse at a hospital and in April 2017, she began working as a registered practical nurse at a long-term care facility. However, she failed to inform the insurer of her return, and as a result, they continued to pay whilst she worked, hence the claim for overpayment.

While the insured did not attend the hearing, her argument was framed as despite having returned, she remained unable to work at her pre-accident job. The Tribunal found, “Her job at a Long-Term care facility was similar in nature to her pre-accident employment and she therefore did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. Therefore, any IRBs paid to her after she began the new job were paid to her in error.” As a result, she was obliged to repay the entire payment received – $13,134 – during the period in question.

Degrees of LATitude – Does the Insurer Have the Right to Medical Opinions Other Than via S.44?

In this Degrees of LATitude, we examine whether an insurer has a right to a medical opinion outside of the Schedule where the requirement to get the opinion is dependent on consent of the insured. This question arises based on the increasing number of relevant inquiries on inHEALTH’s LAT Compendium database and ‘Live Chat’.

No Notice – IE’s Excluded – In 18-008710 & 18-008717 v Aviva, the Respondent sought to introduce into evidence IE Paper Review reports for which the Applicant had not received notice. The Tribunal noted, “Unfortunately, the Schedule is silent as to proper remedy for non-compliance by an insurer with the notice requirement in s. 44…[however] some form of remedy ought to be implemented.” The insurer in this matter conceded that the reports were intended to be secured as per s.44.

The Tribunal confirmed, “some very real privacy and consent concerns that could arise if examinations were allowed to proceed unknowingly to the person being assessed.” Noting that notice under s.44(5) is mandatory, the failure to provide notice “renders the scheduling of the IEs improper”.

Concluding, “the only practical remedy is to exclude the product of those assessments, the reports themselves, from being relied on by the respondent at the hearing…if I permitted the respondent to rely on these reports, this potentially could lead to insurers unilaterally…dispensing with the requirements of s. 44(5)(a) when conducting paper reviews, which could lead to further abuse”.

Can an Insurer Obtain a Medical Opinion Other Than Through s.44?

The above Aviva case brings to light a 2008 FSCO decision Borowski v Aviva, A07-002593 which came to a different conclusion, based upon the insurer taking a much different approach. In this matter, the insurer, following in person CAT IE’s and rebuttal reports, provided the medical files to another assessment vendor to conduct a paper review, without following the notice procedure. The Arbitrator found that relevant caselaw “recognize that a paper review is a relatively unintrusive (sic) means of obtaining evidence for a hearing…The principle that a party to an adversarial proceeding is entitled to a diminished expectation of privacy concerning personal information relevant to the dispute is well established.”

There was found to be “no substantive difference between disclosure to counsel and Aviva’s disclosure to medical experts for the purpose of obtaining an opinion on the issue in dispute. Aviva’s recruitment of professional expertise is at the heart of both relationships.” Given that “the right to obtain the subject reports is not based on section 42 of the Schedule, I find that Aviva was not required to comply with the notice provisions of section 42”. Further, it was found that “in commencing an application in which his medical condition was in issue, Mr. Borowski implicitly consented to the acquisition by Aviva of expert medical opinions, based on the personal information he was required to disclose.”

Does Borowski answer the question stated above? It remains to be seen whether this approach will be accepted by the Tribunal.

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