Volume. 9 Issue. 2 – January 15, 2025
This week the Tribunal considered the Applicant’s claim for IRB both pre and post 104 weeks. Finding neither the expert for the Applicant or Respondent particularly helpful, the Tribunal ultimately accepted that the Applicant was entitled to pre 104 IRB, however not beyond. It appears as well that the Tribunal erred in terms of the IRB quantum awarded.
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Tribunal Accepts Neither Expert in Awarding Pre But Not Post 104 IRB
Neither Expert Opinion Accepted – Injured in a September 2021 MVA, the Applicant De Barros, in22-010822 v Wawanesa, sought payment of IRB from November 8, 2022, to date and ongoing. Ultimately, the Tribunal ruled that De Barros was in fact entitled to IRB through to the end of the 104 week period, however not beyond. Further, the quantum was reduced to $4.75 per week. Prior to the MVA, De Barros worked part-time as a cleaner. She worked four-hour shifts, five days a week for a total of twenty hours per week. Her job was physical, and the essential tasks of her employment included lifting and emptying garbage bins, vacuuming and dusting. It was the position of Wawanesa that De Barros’s “complaints about her impairments and limitations are unreliable as she claims that she did not have any functional limitations pre-accident which are contradicted by her medical records, which show serious and debilitating conditions.”
Pre 104 IRB
Finding De Barros entitled to pre 104 IRB, the Tribunal noted that while she “had a significant pre-accident medical history with some functional limitations, these did not interfere with her ability to work pre-accident. Although there was a reference in the pre-accident CNRs of Dr. Keesal which recommended she be off work for a brief period of time, I find the pre-accident income tax assessments support that she was earning consistent income in the years leading up to the accident, despite having the aforementioned medical conditions.” Further, that “the totality of the medical evidence supports that the applicant was a vulnerable person who sustained soft-tissue injuries, as a result of the accident, which also exacerbated her pre-existing low back pain and resulted in a psychological impairment. I find on a balance of probabilities that the combination of the applicant’s accident-related impairments, coupled with her age and complex pre-accident medical history has led to her suffering from a substantial inability.”
Expert Reports
Of note, the Tribunal found “the expert reports relied upon by both parties unhelpful as far addressing the disability test for the applicant’s entitlement to an IRB. I find the respondent’s assessors underestimate the applicant’s impairments and functional limitations and Dr. Karmy, the applicant’s assessor, overestimates them. Consequently, where there are consistent reports and findings about impairments supported by limitations, I have accepted those findings…Despite acknowledging that the applicant’s pre-existing low back pain was aggravated by the accident, and that the applicant had limited ROM in her neck and shoulders, the doctor concludes that prognosis is good for functionality of daily activities and employment. I find the doctor fails to explain how this conclusion was rendered. Moreover, it is inconsistent with the diagnoses and physical examination which revealed restricted ROM. The doctor provides no analysis about what the essential duties of the applicant’s employment are.”
On the other hand, addressing De Barros’s expert, the Tribunal agreed with Wawanesa “that the numerous diagnoses listed in Dr. Karmy’s chronic pain assessment are excessive and most are not supported by the pre- and post-accident CNRs. However, I accept parts of the report where the doctor discusses the applicant’s physical impairments and functional limitations because it is consistent with the other medical evidence… Although Dr. Karmy does not address the legal test for entitlement, I find the report supports that she has functional limitations which would result in a substantial inability to carry out the substantial tasks of her employment as a cleaner due to ongoing pain and restricted ROM.”
From a psychological perspective, the expert for De Barros concluded that she was “significantly focused on her physical pain and feels helpless about her condition. The doctor concludes that her pain-focused behaviour and magnification of physical pain substantially impair her daily life.” Wawanesa’s expert however, while providing diagnoses, concluded that De Barros’s “impairment is not of a sufficient incapacitating degree, and therefore, from a psychological perspective she does not suffer a substantial inability to perform the essential tasks of her employment.” The Tribunal found this “conclusion lacking as far as providing the rationale for why the applicant’s psychological impairment does not result in a substantial inability to perform the essential tasks of her employment. I find on a balance of probabilities that the applicant’s accident-related psychological impairment likely contributed to her inability to return to work post-accident. However, I have already determined that she has a substantial inability because of her physical impairment so her psychological impairment is not determinative of the issue.”
Quantum
With respect to quantum, neither party provided a calculation, with De Barros being subject to the ramp down provided in s. 8(1) of the Schedule as she turned 65 on October 28, 2022. The Tribunal concluded that “the formula is $237.54 x. 0.02 x 1, in which her weekly IRB is $4.75 per week, from November 8, 2022, to September 29, 2023.” It seems that this may well be in error, as the Schedule provides for a statutory minimum of two years, which would double the quantum to $9.50 weekly.
Post 104 IRB
With respect to post 104 IRB, De Barros submitted that “entitlement to post-104 IRBs is not in dispute because the respondent has not conducted any IEs denying the applicant’s post-104 entitlement to the benefit. The applicant argues that because the respondent did not lead any evidence to support, she is not entitled to post-104 IRBs she is automatically entitled to payment of same.” Wawanesa for their part “disagrees because the Tribunal’s order notes that her ongoing entitlement to an IRB is in dispute. Further, the respondent’s IEs determined that she does not meet the pre-104 test. The respondent asserts that the applicant’s position makes little sense because the 104-week anniversary has long passed, and the applicant’s affidavit addresses the complete inability test. It submits that the burden of proof is on the applicant. It is not up to the respondent to disprove it. I agree. The applicant’s argument that she is automatically entitled to post-104 IRBs if I determine she meets the pre-104 test is unsupported by any jurisprudence. It is well established that it is the applicant’s onus to prove ongoing entitlement to benefits.”
The Tribunal found there to be “little evidence before me to support that the applicant has any ongoing impairments during the post-104 time period to support that she meets the complete inability test… statements made in the applicant’s affidavit are not supported by any persuasive evidence. For these reasons, I find that the applicant has not met her onus in proving that she has a complete inability to engage in any employment for which she is suited by education, training, or experience.”
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