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 Volume. 5 Issue. 44- October 6, 2021



This week’s focus is on IRB where we review two recently released decisions dealing with calculating post accident income involving self-employment.

In the first case, the Tribunal calculated the IRB base rate, however, determining an inability to calculate IRB payable, given conflicting post-accident earnings evidence.

In the second case, the Applicant was confirmed as suffering from a substantial inability, until credibility issues essentially nullified the claim.

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Post-Accident Earnings Quandary Negates IRB Entitlement

Money From the Streets – As the result of an August 2018 accident, Travelers, in Giannoulis v 20-000280 v Travelers ( 20-000280), conceded that Giannoulis met the test for entitlement to IRBs from February 20, 2019 to January 11, 2021. However, the parties disagreed on the quantum for the self-employed labourer for a construction business owned and operated by his father. Giannoulis relied upon an accountant’s report proposing IRB in the amount of $361.59 weekly, however the Tribunal found this to have been calculated incorrectly. The calculation was based upon Giannoulis’ last 52 weeks earnings, rather than the income from the 2017 taxation year as required by S.4(3) of the Schedule, given the self-employed status.

The Tribunal nonetheless found that Giannoulis had provided sufficient records, being the 2017 and 2018 tax returns, to allow for a calculation. To that end, Traveler’s accountant’s continued request for documentation other than tax records was found excessive, as the focus ought to have been on the amount accepted by the CRA. The Tribunal calculated IRB based upon same to be $355.38, however noted that “(t)he analysis, however, does not end here”, as the Travelers was entitled to deduct 70% of any post-accident income earned.

While there were no tax records for 2019 and 2020, bank records confirmed bank deposits totalling $105,581 in 2019, $73,924 in 2020. This stood in contrast to information relied upon by Giannoulis’ accountant, that he had worked only one hour per week, earning $20. Addressing these deposits, Giannoulis contended that the deposits were “loans” from his father, and that he also “borrowed money from the streets”. The Tribunal placed no weight on these contentions, given the failure to comply with an Order to provide further particulars therein. Therefore, the Tribunal was unable to calculate the amount payable for the period in question, being unable to calculate post-accident earnings. As a result, Giannoulis had not met his burden of providing sufficient evidence to allow for a calculation of IRB payable.





Credibility Issues Nullifies IRB Entitlement

Credibility Trumps Disability – In NC v Aviva (19-001405), NC, a real estate agent, injured in a December 2016 accident, sought ongoing IRB from May 2018, when entitlement was denied by Aviva. The Tribunal found “that the medical evidence supports that, at the time his IRBs were terminated, NC still suffered a substantial inability to carry out the essential tasks of his employment as a real estate agent.” This was as a result of evidence that there was confirmed driving anxiety, which would represent a large part of his duties. In addition, he had consistently reported “he had low self-confidence that resulted in reduced motivation which, in my view, would interfere with selling homes and finding new clients.” The Tribunal agreed that success in sales requires energy, motivation, and a positive attitude.

Similar to the previous case however, the analysis did not end there, as Aviva raised valid arguments regarding NC’s credibility. Ultimately, the Tribunal found that “(a)s a result of these credibility issues, NC has failed to persuade me on a balance of probabilities that his accident-related impairments resulted in a substantial inability for him to complete the essential tasks of employment.”

NC commissioned an accountant’s report that confirmed he had not been “forthright with any of the assessors about his pre- or post-accident income.” The report confirmed that he “made more income from real estate transactions in the year following the accident, which discredits his position that he has a substantial inability…”. As a result, the Tribunal found “the applicant’s self reports to assessors about the accident causing him financial distress to be contradictory.”

The Tribunal agreed with Aviva that this “undermines his credibility and the value of his assessors’ reports.” The Tribunal noted that the “matter is complicated by the fact that NC has been diagnosed with a psychological impairment by both his and Aviva’s IE assessors.” However, all four assessors during cross examination acknowledged their reliance upon the NC’s self reports regarding pre and post accident employment. It was found that “an accurate history of NC’s pre-accident employment and documentation to support it is necessary to determine to what extent his accident-related impairment resulted in his inability to work. This was not done in this case.”


Related LAT inFORMER Issues:

Insurer Not Obliged to Pay Disability Benefits Despite Failing to Comply with Notice Provision
EI Maternity Deduction & $0 Quantum vs. Eligibility



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Archive of LAT Updates

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

CAT

September 25, 2023: Chronic Pain Distinct from Recurring Pain

MIG

September 20, 2023: Expert Opinion Not Required for IRB Entitlement

IRB

September 18, 2023: Inconsistency Argument Not Accepted

MIG

September 13, 2023: IRB Payment Delayed Four Years – 20% Award

Award, IRB

September 11, 2023: MIG Determined Absent Applicants Written Submissions

MIG

August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

CAT

August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

MIG

August 23, 2023: WSIB Placement Qualifies for IRB

IRB

August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

MIG

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