This case involves a dispute between the plaintiff and her insurer over the payment of Income Replacement Benefits (“IRBs”) beyond the first two years following the collision. The plaintiff was injured in a motor vehicle collision (“MVC”) on November 18, 2018. At the time of the collision, she was working at Mohawk College as a part-time professor teaching recreation therapy 1-6 hours per week and as a field placement specialist 15-24 hours a week. Her hours, therefore, varied between a minimum of 16 and a maximum of 30 hours a week.
Income Replacement Benefits were terminated August 19, 2021, with Primmum claiming that
1) any lingering impairments the plaintiff was suffering were as a result of a 2017 accident she was involved in; and
2) since she had returned to work 5 hours per week, she had proven that she can work and therefore did not meet the post 104-week IRB test.
The matter proceeded before Adjudicator Neilson at the Licence Appeal Tribunal.
This summary focuses on the second argument, namely that the insured did not meet the post104-week IRB test. In reaching her decision, Adjudicator Neilson looked at what constitutes employment reasonably suited by education, training and experience and in doing so, she started with the factors listed in Burtch v. Aviva Insurance Company (2009 ONCA 479). In Burtch, the OCA identified three main factors a court/tribunal must consider when ruling on entitlement to post 104-week IRBs:
- The alternate occupation must be “reasonably comparable to the insured’s former job both in status and reward”;
- A job is not suitable if it requires “a substantial amount of upgrading”; and
- While the primary focus is on the insured’s functional limitations, “job market considerations are also relevant”.
Applying the principles in Burtch, Adjudicator Neilson concluded that in order for a job to be considered “reasonable suited by way of education, training and experience”, it must “also be comparable in terms of status and wages”. In this particular case, Primmum had retained Ruth Billet to do a vocational assessment and she proposed two jobs that the plaintiff could, in her opinion, perform. Under cross-examination, Ms. Billet admitted that she did not know the hourly rate the plaintiff was paid pre-collision, and this alone made her evidence “not persuasive”. In fact, the proposed jobs earned the plaintiff 32% less than what she was earning pre-collision, which the adjudicator found to be “more than an insignificant difference”. Lastly, the job of teaching assistant – one of the jobs identified by Ms. Billet as comparable – “clearly carries less status than a professor”.
Primmum argued that an ability to work at 25-30% capacity compared to pre-collision at a suitable employment does not meet the complete inability test. In the Adjudicator’s opinion, this would only be the case “if the income and status from the reduced hours is comparable to the pre-accident income”. Otherwise, Adjudicator Neilson noted, the result would come counter to the obligation an insured to return to work and mitigate their losses; and would conflict with the provision for post-MVC income to be deducted from IRBs.
Adjudicator Neilson also relied on the Divisional Court decision in Wawanesa Mutual vs. Renwick (2020 ONSC 2226) where the Court confirmed that working past 104 weeks does not disentitle an insured from meeting the total disability test.
Most importantly for the plaintiff, and for us plaintiff lawyers, Adjudicator Neilson found that the plaintiff’s continued attempts to work actually proved that she met the post104-week test:
“I find that the Applicant’s continued engagement in one of her pre-accident positions is evidence that the applicant has made attempts to continue working… I am satisfied by the Applicant’s continued attempts at working at a job similar to those identified by Ms. Billet that the applicant has proven that she has a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience”.
