Volume. 5 Issue. 35- August 4, 2021

Over the next two weeks, we will consider the Tribunal’s positioning regarding entitlement to IRB pre & post 104 weeks, and the relevant interplay between the two tests.

Cases reported in this week’s edition involve limitation and the need to continually adjust, a causation matter, and the “26/52” employed test not being available for one deemed to be self-employed.

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In Trending…

Continuing to Adjust Does Not Invalidate Denial & “Absence of Evidence” IS “Evidence of Absence”

Not an Invitation to Claim – Injured in a December 2015 accident, the Applicant in Edwards v Wawanesa (19-009437), argued that his claim for IRB was not statute barred, as the Respondent failed to provide a clear and unequivocal denial to trigger the two year limitation.

Edwards’ arguments include:

• No medical reason given
• No section of the Schedule cited
• No date for stoppage, or any indication of finality mentioned
• The denial invited a claim for IRB
• No reference as to any consequences for any failure to submit requested quantum information, including an OCF-2

The Tribunal found however that the Respondent’s March 21, 2017 denial was clear and unequivocal, and gave reasons for the denial with a description of the dispute process and timelines. Therefore, the August 16, 2019, application was beyond the two year limitation of March 21, 2019.

The Tribunal found it “unpersuasive” that the denial was deficient as it failed to cite any section of the Schedule or authority, as there was no requirement for the Respondent to do so. The denial rationale, to wit there was no further eligibility as Edwards had returned to work was also found sufficient. As for there having been no date for IRB stoppage or any indication of finality, “the warning about the two year time limitation and the applicant’s right to dispute the respondent’s decision is clear, in capital letters and bold text in the denial letter.”

The notification indicating that Edwards was to complete the enclosed OCF-2 and provide post accident paystubs “does not detract from the clarity of the denial given that an insurer has an ongoing duty to continually adjust. It is not, as the applicant argues, an invitation to the applicant to make a claim for IRB but a notification that if the applicant intends to pursue IRB further, paystubs and an employer’s confirmation form should be provided.” The Tribunal also confirmed that “the respondent is not required to note any possible consequence for failing to submit the employer’s confirmation form and paystubs.”

Absence of Evidence Not Evidence of Absence? – Injured in a July 2017 accident, the Applicant in Binet v Liberty Insurance (20-001886), sought IRB from April 11, 2019 ongoing. Following the accident, and prior to October 11, 2017, Binet had gradually returned to work as a package driver, was lifting up to some 60 pounds and was almost at full duties. However, Binet submitted that his symptoms increased as his workload increased until October 12, 2017, at which point he was no longer able to continue. The Respondent, for their part, despite it seems having paid IRB through to April 2019 contended that Binet’s impairments were not caused by the accident but by a disc herniation that he suffered on October 12, 2017.

The Tribunal found that “the applicant’s medical records post-accident and before the disc herniation on October 12, 2017, taken in totality, establish that the applicant’s physical injuries from the accident were soft tissue injuries only and were substantially healed by the time the disc herniation occurred.” Binet confirmed that starting a few days post-accident until October 11, 2017 he was working full-time on modified duties, and had been cleared to lift 60 pounds. In addition, the records of the GP June 27 and July 18, 2017 indicated that the injuries were improving. In the early morning hours of October 12, 2017, Binet felt something “popped in his neck”, resulting in extreme pain. He was subsequently diagnosed with a left C7-T1 disc herniation with secondary C8 radiculopathy.

Binet’s GP appeared on the one hand to attribute the herniation to Binet’s workload, in a November 21, 2017 statement to the disability carrier, indicating that “Patient originally improved after accident and returned to modified duty. Symptoms worsened as workload increased.” However, in an OCF-3 dated one day later, the GP “appears to also attribute the disc herniation to the accident”, indicating accident related injuries to now include C7-T1, C6-C7 disc herniation and left C7, C8 radiculopathy. Finding that Binet was thusly disabled from employment due to the accident, his opinion was ultimately afforded little weight, as it stood in contrast to July 2017 imaging (no findings), the treating physiotherapist’s description of injuries and the opinion of the orthopaedic IE assessor.

With two OCF3’s endorsing accident related disability, the IE assessor opined that both were “incorrect”, in that the “concurrent unrelated disc herniation cannot be causally attributed to the accident”, and the Tribunal accepted that the documents were in fact “incorrect”. Binet’s psychological assessor opined that the related impairments “have been continuous since the accident”, which the Tribunal noted to be unfounded, as the available records did not support such a finding, and the assessor would have no firsthand knowledge of the psychological status between the accident and the disc herniation. The Tribunal did not accept the contention by the assessor that “absence of evidence is not evidence of absence”.

Ultimately, the Tribunal concluded that the post herniation impairments “were not caused by the accident either solely or in conjunction with another cause or causes.” Having failed to meet the pre 104 disability test, the post 104 entitlement test “cannot be met”.

Not “Self-Employed” on Date of Loss – In the reconsideration of Papadakis v Wawanesa (18-000957, while the main issue was a CAT determination, the Tribunal also confirmed the requirements for a self-employed individual to qualify for IRB. Papadakis suggested that s.5(1) of the Schedule provided that an Applicant “must be ‘either employed or self-employed for at least 26 out of 52 weeks prior to the collision.’ The Applicant was clearly eligible for income replacement benefits.” The Tribunal however confirmed this as a misread of the applicable section, as it in fact “does not extend the 26 weeks out of the prior 52 weeks qualification to self-employed persons.”

The test was confirmed as being either employed on the date of loss, employed 26/52 weeks or self-employed, and “the applicant was self-employed so the 26 out of the prior 52 weeks does not apply to him.” He failed to satisfy the onus of establishing that he was self-employed at the time of the accident, therefore did not qualify for IRB.

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