Volume. 6 Issue. 4 – February 2, 2022
The complexities of ongoing Income Replacement Benefits are evidenced in the two featured cases reviewed in this week’s edition where the Tribunal awarded ongoing post 104 IRB. Both cases also involve a quantum element given self-employment factored into the various calculations
The first case involves an Applicant’s pre-existing psychological issues that were exacerbated by the accident and still present at the time that the IRB was terminated, more than 104 weeks post accident. Employed part-time as a restaurant hostess while attending university full-time at the time of the accident, the Applicant was unable to return to her employment or continue her studies nor engage in any employment.
In the second case, the Applicant, a self-employed painter and contractor was awarded IRB through to the 104 week mark as well as post 104 on an ongoing basis, given his inability to undertake continuous, regular work.
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Multiple Failed Work Returns Determinative
Denial More Than Three Years Out Called into Question – In Campbell v TD Insurance (20-000143), Campbell was injured in a November 2015 accident, she was paid IRB through to January 24, 2018. TD terminated IRB based upon a s.44 multi-disciplinary report.
The Tribunal however found there to be “consistent, contemporaneous indications that Campbell’s psychological symptoms, primarily her anxiety, have prevented her from completely engaging in employment or self-employment for which she is suited up until at least 2021.” It was clear that Campbell’s pre-existing psychological symptoms were exacerbated by the accident, and “were still present at the time the IRB was terminated, and in the three years’ worth of post-termination medical documentation before the Tribunal.”
The Tribunal preferred the evidence of Campbell’s January 2021 neuropsychological report, clinical notes from the family doctor and evidence related to unsuccessful work return attempts, over the 2018 s.44 reports. The report of the neuropsychologist was found to be “thorough, consistent with the bulk of the medical evidence and more attuned to the nuances of Campbell’s struggle to return to a complete engagement with her pre-accident capabilities…”.
The s.44 psychological report was found to have “downplayed the effect that Campbell’s anxiety and accompanying physiological response to same has on her ability to engage in employment” and the suggestion that Campbell was magnifying her symptoms or presentation was “undermined” by the consistency of reported symptoms throughout.
The s.44 vocational and transferable skills reports were noted as having failed to appreciate how Campbell’s psychological symptoms would affect her ability, mentally and physically, to engage in the types of occupations it proposed.
The Tribunal found compelling recent evidence of the “abandoned attempt to start a small business, her need for counselling while completing her studies, her last-minute refusal to attend at a job she had accepted and a different employer rescinding a job offer after being unable to accommodate the applicant’s employment needs.”
It was noted that the reports relied upon by TD were rather dated, being from early 2018. These reports were “trumped” by Campbell’s ongoing struggles through to 2021, calling into question the basis for the denial of IRB more than three years earlier.
Applicant’s Post 104 Evidence Uncontradicted
CRA Debt in Excess of $110,000 Immaterial – Injured in a November 2017 accident, the Applicant in K.Y. v Aviva (19-001720), was paid IRB through to July 16, 2019. Finding that an essential task of K.Y.’s pre-accident employment was driving himself, supplies and equipment to job sites, the Tribunal was satisfied that K.Y. had proven “that he was substantially unable to drive himself and his painting supplies and equipment to job sites within the 104-weeks post-accident period.
In conjunction with reliance upon their IEs, Aviva submitted that “there was no viable job for the applicant to return to” as his company owed the CRA in excess of $110,000, hence the company was “doomed” and that there was no point in K.Y. returning to his pre-accident position. The Tribunal, though confirmed whether factual or not, said evidence was “immaterial to the test for entitlement to IRB”.
As for post 104 IRB, the Tribunal accepted that K.Y. was suited for heavy physical jobs based on his education, training, and experience, with limited English skills and a limited resume. He was also however found to have experience and expertise in hiring and managing subcontractors, providing estimates and invoices, ordering supplies, and addressing customer service issues.
During the post 104 period K.Y. ‘s doctor completed a CPP Disability application, confirming K.Y. to be “totally disabled and was unable to return to gainful employment due to a combination of factors including his chronic pain, chronic headaches, and difficulty concentrating.” Further, the duration of disability was said to be greater than one year, and the condition was “likely to deteriorate.”
Aviva attempted to argue causation, given that K.Y. had numerous pre-accident health issues that impacted employability, however none of K.Y. ‘s physical pre-existing medical conditions were found to have had any impact on K.Y.’s areas of physical pain complaints post-accident. To that end, Aviva ”submitted no medical evidence dated within the post-104-week accident period as its position was that the applicant’s injuries were not caused by the accident but instead were pre-existing.” There was also found to be overwhelming evidence that K.Y. suffered from significant headaches and migraines and made repeated cognitive complaints post-accident. Ultimately, the Tribunal held that “the applicant’s evidence for the 104-week period post-accident is persuasive and remains uncontradicted.”
The Tribunal also found the Applicant as being “completely unable to engage in owner/operator-type duties which he has experience in from owning and operating the company”. The Tribunal accepted the opinion of his treating pain specialist that “while the applicant was able to complete a token task, he was not able to undertake continuous, regular work.” This opinion was based on “how badly the applicant feels, seeing how the applicant functions, and knowing that the applicant has difficulty completing simple tasks and regular everyday activities.”
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