Volume. 5 Issue. 28 – June 23, 2021

This week the Tribunal considers evidence required to establish a post 104 “complete inability”, and what appears at least to be a rather arbitrary cessation of entitlement one day after a “complete inability” was confirmed, given the lack of ongoing records.

As well, we report on another curious take on what constitutes a “complete” OCF-3.

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Post 104 IRB – One Day Entitled, the Next Not so Much

“Complete Inability” …to a Point – In Antonjeyanthiran v Aviva (20-000089), an October 2016 MVA, the Applicant, who worked as a general labourer in a laundry facility, sought IRB at $400/week from January 20, 2018, to date and ongoing. Having dismissed the Respondent’s psychological IE by Dr. S. dated December 2017 finding same to be “truly stand-alone evidence”, the Tribunal held that Antonjeyanthiran met the “substantial inability” test due to confirmed psychological impairments, and granted entitlement to the 104-week mark, October 8, 2018. However, while post-104 IRB was also granted, the twist comes when it was only granted to a specific date, after which there was no further medical evidence before the Tribunal.

On the post-104 entitlement, the Tribunal accepted the Respondent’s expert’s identified occupations as reasonably suited employment for the Applicant based on her education, training and previous work experience in Canada.

However, the Tribunal found that beyond the 104-week mark, the ongoing psychological impairments rendered Antonjeyanthiran unable “to tolerate increased pain associated with increased activity, control her emotions during the performance of her occupational duties and attend and concentrate on essential work tasks.” The Tribunal relied upon the opinions of Antonjeyanthiran’s treating practitioner and an IE psychologist (Dr. B.) to support ongoing psychological disability through to and beyond June 2019. While the Tribunal afforded no weight to a November 2019 chronic pain assessment, the Tribunal found, “Nevertheless, the applicant continued to exhibit psychological symptoms”, referencing a February 2020 GP IE.

The Tribunal once again dismissed the opinion of the Respondent’s psychological assessor Dr. S., finding that elevated test scores were a “cry for help”. With “little evidence of any effective psychological treatment having been provided to the applicant up to March 16, 2020”, the Tribunal found on a balance of probabilities that as of that date, Antonjeyanthiran remained completely unable to engage in any suitable employment. However, here is the twist; the Tribunal found themselves “unable to find that the applicant has met her burden of proving entitlement to IRBs beyond March 16, 2020, because there is no documentation before me during this time to support ongoing entitlement to IRBs based on the applicant’s psychological impairments.”

On the one hand, one might opine that the psychological evidence in support of a “complete inability” beyond June 2019 was rather sparse. However, the suggestion of a “complete inability” as at March 16, 2020, however being unable to opine beyond that date seems rather curious. The Tribunal also dismissed Antonjeyanthiran’s evidence regarding physical impairments, preferring in this instance the opinions of the IE assessors.

Completed OCF3 not “complete”?

Complete is Not “Complete” – In April 2020, we highlighted a case wherein the Tribunal had a rather unique take on what constituted a “completed” OCF-3. To wit, “the statutory requirement to submit a ‘completed’ disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for non-earner benefits”. Whereas this interpretation stands in stark contrast to prior and subsequent decisions, nonetheless in a recent decision Munu Munu v Aviva (20-005924), the same adjudicator has doubled down, ultimately finding that the Applicant, following a seven day hearing was barred from claiming NEB, having failed to submit a “completed” disability certificate as required by the Schedule.

In the matter at hand, the only OCF-3 submitted had indicated “no” with respect to NEB entitlement. The Tribunal found that the statutory requirement to submit a “completed” disability certificate “is not fulfilled by the applicant submitting a disability certificate certifying the applicant does not meet criterion for NEB. The requirement in s. 36(2) is not procedural, it is substantive and there is good reason for it.” With Munu Munu having submitted into evidence prior contrary Tribunal decisions, the adjudicator countered that “other Tribunal decisions are not binding on me and are confined to their facts.” This, despite the referenced decisions appearing to represent essentially similar fact situations. Perhaps Munu Munu notwithstanding can take some solace in that the entitlement to NEB was also determined (not in favour) upon the merits of the submitted evidence and testimony.

Related LAT inFORMER issues:
New Standard for Complete OCF-3?

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