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 Special Edition – November 23, 2021

In this “IRB Entitlement” Special Edition LAT inFORMER Issue, the Tribunal considers various aspects of IRB entitlement, including:

• What establishes “employment”
• Implications of receiving EI Benefits
• Post 104 entitlement despite ongoing employment
• “Real World” considerations regarding modified work returns
• Implications of receiving CPP

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Are You Employed?

In order to be entitled to receive IRB, the requirement is to be “employed”. The current, applicable Schedule is silent on what constitutes a person being “employed”. However, it does provide three potential criteria for IRB: the insured person (i) be employed at the time of the accident; (ii) be employed at least 26 of the 52 weeks prior to the accident; or (iii) be receiving benefits under the Employment Insurance Act at the time of the accident.

We have highlighted cases that have considered:

• The nature of the employment “relationship”
• Financial considerations required to be “employed”

We now consider a case that delves into the implication of EI status, specifically when is one “receiving” EI.

Benefit Received but not Receiving Benefits – In 19-007357 v Wawanesa, the Applicant, injured in a July 8, 2018 accident argued that he was entitled to IRB as he was receiving EI benefits on the DOL. He did in fact receive a final payment July 11, 2018. The Respondent argued however that this final payment was for a period ending June 30, 2018, the date upon which his EI entitlement had ended. Further, “an applicant is not entitled to an IRB when the accident occurs outside the EI benefit period because he was not ‘receiving’ benefits during this time.”

The Tribunal found the key sentence from s.5(1)1ii.A to be “was the applicant receiving benefits under the Employment Insurance Act (Canada) at the time of the accident.” Referencing the EI Act, it was noted that “benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period…If a benefit period had been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period.” Within that context, the Tribunal concluded, “an applicant cannot ‘receive benefits’ and cannot be paid under the EI Act unless a benefit period has been established. Any receipt of payments must be in accordance with a benefit period.” Therefore, as of June 30, 2018 in this matter, the benefit period was over, hence he was no longer “receiving benefits”.

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.”

Real World Considerations & CPP Does Not Guarantee IRB

A Real World Considerations – The Applicant, in 19-000209 v Unifund, injured in a March 2016 accident received IRB for one year post-MVA, at which time they were stopped by the Respondent. This decision was largely based upon the opinion of one of its assessors, who opined that “Due to her deconditioning, she would benefit from performing her pre-accident employment tasks on a flexible schedule, utilizing pacing by sitting, standing, and taking breaks at the claimant’s own discretion.” The Tribunal found that the return to work prognosis was “not as clear cut as what the respondent has tried to portray.”

Firstly, it was noted that the job as a cleaner requires her to be on her feet all day, hence “the idea of being able to ‘sit’ is pretty much a non-starter.” Further, it was found “not reasonable to expect in a real world setting, that…(she) could negotiate with her employer, such favourable terms…on a flexible schedule…and taking breaks at the claimant’s own discretion. To find otherwise is to ignore the reality facing employees working in low-waged precarious jobs where they often lack the power to negotiate favourable working conditions.” Therefore, she was awarded IRB to the 104 week mark.
However, despite being in receipt of CPP disability since December 2017, she was not entitled to post-104 IRB, having demonstrated the capacity to work in another field commensurate with her abilities and was in fact seeking such work. The CPP eligibility does not automatically qualify one for IRB, given the different eligibility requirements, and the fact that in this case there appeared to be non-accident related issues also involved.

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