Volume. 5 Issue. 47- October 27, 2021

In this edition we review two IRB cases. One where the LAT is persuaded by the Applicant’s testimony and expert evidence to award post 104 IRB. However, reduces the weekly amount by the business losses that ceased.

In the second case, the LAT has a different take on CRA records finding the fact of not having declared income on his 2019 tax return was not, in this particular case, persuasive evidence of not having worked. This ruling is contrary to numerous LAT precedent cases.

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Quantum Reduced for Post 104 IRB

Post 104 IRB Confirmed At a Reduced Rate – In Awadalla v Intact (20-006345), injured in an August 2017 accident, Awadalla, a self-employed Uber driver, sought ongoing IRB from the denial date of May 20,2020, as he cannot return to any employment “due to his limited education, lack of any other specific skills or experience, mental health impairments, including chronic pain, and significant physical restrictions”.

The Tribunal ultimately agreed with Awadalla, preferring his evidence as it was “more complete, compelling, and comprehensive”, in conjunction with his testimony, found “generally to be credible, reasonably consistent, and accurate.” In addition, the Tribunal found Awadalla’s two assessors “persuasive” (one particularly so), with Intact having failed to call a witness to challenge either.

The Tribunal took issue with Intact’s expert, finding his report not consistent with the overall evidence presented and further given that said report was not subject to cross examination. It was noted that the expert (summoned by both parties however he was apparently out of the country) “conducted a myriad of assessments, addressed the post 104 issue, and came to a considerably divergent opinion compared to Awadalla’s orthopaedic expert, including on causation. Yet, he was not able to testify to explain his findings. His report was therefore not subject to cross examination, and this ultimately goes to weight to be given to his reports.”

Intact further produced a report with various post 104 employment options, however it was found that Awadalla could not fulfill the duties of any given his functional limitations and psychological problems. In addition, the options provided “did not consider that the applicant’s first language is not English, that he has limited writing and reading skills, and that he has been self employed for most of his prior jobs…a self-employed individual usually works independently and is usually free to work when and for whom they choose.” It was also noted that his other jobs were “dated and it would be very difficult to catch up.”

Concluding, “the clear, unequivocal conclusions from Awadalla’s qualified experts relating directly to the IRB criteria who were essentially unchallenged, combined with Awadalla’s own credible testimony, were preferred over the insurer’s IE’s.”

Regarding quantum, Intact contended that as of January 1, 2020, IRB payable would reduce from $279 to $200, as post accident losses are not claimable beyond the end of the calendar year in which the business stopped operating. With Awadalla having stopped operating his Uber business in June 2019, the Tribunal agreed with Intact that for 2020 and beyond, he is not entitled to claim a weekly business loss amount if he does not operate his business.

Earnings Confirmed Despite Not Filing With CRA

CRA Records Not Determinative – Ababio, in 20-001415 v TD Insurance. sought IRB at the rate of $400 weekly from September 4, 2018 through to January 29, 2020. Contending that he did not return to work until January 28, 2020, the Tribunal however found that “the weight of the evidence indicates otherwise.” Records from Ababio’s union firstly established that he had in fact worked a total of 219 hours in the initial three months post accident. It was found “unpersuasive” that these hours reflected “banked hours” for work performed pre accident, and absent any corroborating evidence this assertion was found not to be credible.

Further, Ababio’s record of employment confirmed his last day of work was November 5, 2018, as a result of “shortage of work/end of contract or season”. In addition, various social media postings from October 2018 through to August 2019 evidence Ababio wearing construction site safety equipment at a construction site. Ababio’s contention that these were in fact old pictures posted whilst “reminiscing” about his work days was found unpersuasive.

Finally, the Tribunal, despite numerous precedent cases to the contrary, found that the fact of not having declared income on his 2019 tax return was not, in this particular case, persuasive evidence of not having worked. It was noted that “Absent audit or other investigation, the Canada Revenue taxation system depends on truthful reporting by individuals, something which the applicant appears not to have been doing… with respect to his work status.”

Related LAT inFORMER Issue(s):

Income Earned 2 Years Earlier Establishes IRB? & Self-Employed Quantum Defaults to CRA Filings

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