Volume. 5 Issue. 4 – January 27, 2021

Catching up? Read our latest blog on LAT – Inconsistency & The Price Paid!

In this week’s edition of the LAT inFORMER, disability is put to test in a post 104 IRB case and a novel commentary on the definition of ‘complete inability’ by the Tribunal on the NEB test. Under our Degrees of LATitude, we report on opposing interpretations on ‘medical reasons’ for Sufficiency of Notice.

Post-104 IRB Despite Ongoing Employment

Disabled Despite Working for Over 3 Years – In B.L.J. v Co-Operators (18-012005), B.L.J., injured in a September 2016 accident, sought IRB from October 2017 to date, despite having returned to work in August 2017 in a different capacity, and continued to do so. At the time of the accident, she was employed as a cook at a family owned restaurant. She testified that she did not return to the restaurant due to her injuries, the fact that it was a “toxic” work environment, and finally given that the establishment burnt down, closing permanently in 2018. In February 2017 she had begun transitioning back to work, by volunteering at a residence for assisted living, then accepting a part-time position. Initially she was paid to work 20 hours per week, increased in March 2020 to 25 hours per week.

The Tribunal found that B.L.J.’s physical injuries and depression precluded a return to the fast paced and physically demanding position at the restaurant. While she continued working to date, this was at a position wherein the work was low stress, flexible and consisted of light duties. Further, she was working half the number of hours she worked previously. She was as a result entitled to IRB to the 104 week mark, with deductions for her ongoing post accident income.

With respect to post 104 IRB, it was established that her job at the Residence is substantially different in nature, status and remuneration than her previous job. It was not deemed to be an appropriate alternative to her prior job, noting as well that, “for the work she is paid for, she is not especially successful: she turns off the lights when she has a headache, she has her daughter fill in for her, and she has confused which resident is supposed to get which medication.” It was also noted that absent the “encouraging, accommodating and flexible” employer, she “might certainly have been let go”. Granting post 104 IRB to date and ongoing, the Tribunal had “difficulty finding that she is suited to the part-time job she is undertaking, let alone the high paced, full-time job she previously held.”

Complete Inability Need Not Be A “Direct Result”

NEB Test Not That Strict? – In S.B. v Aviva (19-004142), the Tribunal agreed with S.B. that he was practically prevented from engaging in his most important pre-accident activities, granting entitlement to NEB to date and ongoing. It was noted that S.B. had provided affidavit evidence regarding his prior activities, with the Respondent declining to cross examine him regarding same. Despite S.B.’s pre-existing issues, the Tribunal accepted his evidence that his pain and cognitive complaints combined with his dizziness affect his ability to engage in his pre-accident activities. The Tribunal agreed that S.B. was physically limited before the accident and that the activities he described were not strenuous. However, it found at the same time that “it did not take much of an injury from the accident to have a major affect [sic] on the applicant’s functional abilities.”

Referencing credibility issues raised by the Respondent, the Tribunal indicated that “without the respondent putting questions to the applicant about the credibility issues it has raised, despite having the opportunity to do so, I find no reasons to disbelieve the applicant.” The Tribunal also noted, “I do not find that the applicant’s ability to engage in some of his pre-accident housekeeping tasks on a modified basis or with assistance means that he is able to engage in substantially all of the activities in which he ordinarily engaged before the accident and were important to him.”

For the first time, we have the Tribunal emphasizing the difference between the NEB disability testing requiring only that impairments are “as a result of” as opposed to being “a direct result of”. The Tribunal questioned the extent to which the Respondent’s assessor’s opinion “was impacted by being asked by the respondent to list activities the applicant was unable to perform as a direct result of the accident (emphasis by the Adjudicator).” There is no requirement in s.12 of the Schedule or the definition of a “complete inability” in s.3(7)(a) for the complete inability to be a “direct” result of the accident. “A complete inability as a ‘direct result of the accident’ is a much stricter test than as a “result of the accident.” Concluding, the extent to which the impairments impact his ability to engage “effectively amounts to him having a complete inability to engage in substantially all of his pre-accident activities”.

Degrees of LATitude

The following two cases considered whether “boilerplate” language used in the medical reasons for a denial of benefits could well suffice. In the 1st case, the Tribunal went to great lengths in establishing that contrary to the Court finding in Hedley, boilerplate language was sufficient for the task. However, the 2nd case took an opposing view.

Boilerplate Does the Job – In Mayers v Aviva (19-012033), the Tribunal considered whether “boilerplate” language used in the medical reasons for a denial of benefits could well suffice. The reason in question, “The disability period appears to be inconsistent with the diagnosis or mechanism of injury” has on numerous occasions been found not to satisfy notice requirements. However, in this instance the Tribunal accepted that while the Respondent could have elaborated, the reasons provided “meaningfully relayed the essential components of the reasons for its request…(and) details set out in the notice were capable of enabling A.M. to make an informed decision about whether to pursue her claims and attend the IE or not.”

The Tribunal found that “it requires an unduly narrow reading of the court’s analysis in Hedley to conclude that an insurer’s reasons will live or die on whether they contain boilerplate language. If this were the case, an insurer’s reasons for denying a benefit or for requesting an IE could be found inadequate if they consisted of standardized text of any kind.” Further, “in evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. It would be naïve or impractical or to expect them to articulate something resembling a medical opinion…”.

Boilerplate Signifies Nothing – However, this opinion expressed would appear so far to be an outlier. In B.M. v Aviva (18-009572), a decision released one week prior to the decision above, the Tribunal considered a similar rationale – “the type of treatment does not appear consistent with the applicant’s diagnosis.” In this instance, the Tribunal matter of factly stated the rationale was “an inadequate response, signifying nothing.”

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