Volume. 5 Issue. 36- August 11, 2021

In a continuation of last week’s IRB issue, this week we explore the various considerations regarding the “post 104” IRB test. The cases in review potentially answer these questions:

1. What considerations were given by the Tribunal on two opposing rulings on the ‘complete inability’ test?

2. Does the insurer’s obligation to continuously adjust reset the insured’s claim, despite it having been denied during the initial 104 week entitlement period?

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In Trending…

Complicating Factors When Dealing with Post 104 IRB Entitlement

A Bright Line – In Pushparajan v Aviva (20-000156), the Tribunal noted that as at the time of hearing, more than 104 weeks had elapsed since the accident, therefore Pushparajan, seeking ongoing IRB, “must satisfy the more stringent post-104 week test”. The Tribunal then interestingly noted that “Since I find that Ms. Pushparajan satisfies the complete inability test, that finding includes a finding that she satisfied the substantial inability test for the first 104 weeks.”

Injured in a July 2018 MVA, Pushparajan sought IRB from March 2019 ongoing. She was described as having worked as a homemaker for 30 years after completing grade 10 in Sri Lanka, coming to Canada in 1992 as a refugee, and ultimately securing a position as a packer in 2007.

The Tribunal determined that Pushparajan’s background training and experience involved positions that were physically demanding, requiring neither a great facility in English nor higher education. Having reviewed the medical evidence, the Tribunal was satisfied that as at March 2019 Pushparajan was unable to perform the essential tasks of her employment. She was said to have “made a valiant effort” to return to work for two days, however was unable to continue due to pain. She was found to be suffering from chronic pain syndrome, with the associated factors “weigh(ing) heavily in considering her overall employability.”

Turning next to post 104 IRB, the “limited work experience, when combined with her low level of English functioning and lack of higher education, would limit her job opportunities to physically demanding jobs, …due to her chronic pain syndrome…she meets the complete inability test. She is unable to engage in any employment for which she is suited by education, training or experience.” The Tribunal concluded that “(t)he accident stands as a bright line in Ms. Pushparajan’s life and it is clear that, but for the accident, she would have continued working as long as the job was available to her.”

No More Wasting My Time at That Job – Injured in a November 2017 MVA, the Applicant, in Staszewski v Aviva (20-003600), sought ongoing IRB from March 8, 2020. She claimed to be unable to work on a full-time basis in the same capacity as before as an optometry assistant. She indicated she was currently working one or two five hour shifts per week at her friend’s bakery as well as teaching yoga once or twice per month, being unable to work consecutive days or full-time shifts. The Tribunal, while being alive to Staszewski’s self-reporting of her inability, nonetheless found that “her submissions are not supported by any objective, compelling medical evidence speaking to a complete inability”.

The Respondent contended that “the applicant’s education, training and experience demonstrates a woman who is creative and physically active. She holds a Bachelor of Arts Degree, obtained a Superior Pastry Degree and, post-accident, successfully completed an intensive yoga teaching program.” The Tribunal agreed that “applicant has a bachelor’s degree and a pastry degree, has demonstrated the ability to learn new skills and implement her own experiences in her yoga teaching practice, has shown the ability to organize and prioritize her activities, remains quite physically active, has found enjoyment in various artistic pursuits and continues to engage in her community through volunteer work.” Further, Staszewski “has also been able to pivot to other forms of employment and passions…(and) has demonstrated the ability to both train and engage in new occupations and engage in occupations that she was previously trained in or educated in.”

The Tribunal also found that Staszewski’s medical evidence was somewhat “dated” and did not speak directly to the “complete inability” test therefore did not rebut “the veritable mountain of medical evidence and opinion stating she does not meet the test” found in the seven IE’s secured by the Respondent. The Tribunal further agreed with the Respondent that references in her GP’s clinical notes were “strongly suggestive of a motivation to pursue a post-accident life filled with activities and occupations that she values rather than out of medical necessity.” These included comments that she “does not want to waste any more time at her previous employer”, “wants to do some volunteer work” and “get back to the things she likes: outdoors, pottery, and rock climbing”.

Most Unpersuasive – In Asher v Wawanesa (19-013046), an October 2013 loss, the Respondent denied Asher IRB in March 2014, indicating that she was not eligible effective December 9, 2013, as she had returned to work. More than two years later, in May 2016, Asher wrote to request IRB, claiming to have been off work since August 2015.

More than another two years later, in November 2018 she sent a follow up correspondence. The Respondent subsequently secured an IE in November 2018, after which they denied post 104 IRB in April 2019 based upon the IE. Notwithstanding, the Respondent relied upon a limitation defence following the filing with the Tribunal.

The Tribunal found unpersuasive a submission that the Respondent had not raised limitation until after the filing with the Tribunal, as Asher was obligated to file within two years of denial, which they failed to do. Similarly unpersuasive was a further submission that Asher “understood her claim for IRB was being considered and she attended the post-104-week IE voluntarily.” The Tribunal confirmed that “(t)he applicant’s understanding about the status of her claim for IRB is not relevant as to whether she complied with the limitation period in the Schedule”.

Yet another submission deemed unpersuasive centered around the consumer protection aspect of the legislation. The Tribunal found that “none of the respondent’s action can be construed as an agreement to pay IRB or any other basis of estoppel… There is nothing that the respondent did here, including conducting an IE, that precludes the respondent from denying, as it already had, the applicant’s entitlement to IRB.” In addition, the fact that “the Schedule is consumer protection legislation does not relieve the applicant of the obligation to comply with the legislated limitation period”. It was noted as well that between the 2013 IRB stoppage and March 2016, Asher “chose for her own reasons” not to challenge the denial, despite having stopped working in 2015. As a claim for post 104 “can only succeed if the applicant has established eligibility for IRB within the first 104 weeks after the accident, which the applicant did not do after the denial.”

Related LAT inFORMER issues:

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

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