Victoria Edwards, a personal injury lawyer with Siskinds LLP, was recently published in Law360.
This article was originally published by Law360™ Canada, part of LexisNexis Canada Inc.
Read the full article below.
In Traders General Insurance Co. v. Rumball,  O.J. No. 5681, the Ontario Divisional Court made important findings with respect to two common issues that arise in automotive accident benefits disputes. It was asked to consider appeals of two issues:
- Was the applicant’s application for income replacement benefits (IRBs)statute-barred or had the two-year limitation period not started to run due to an ambiguous denial letter?
- Does the post-104 test for income replacement benefits incorporate an analysis of whether other suitable alternative employment must be reasonably comparable to the insured’s former job in both status and reward?
The applicant (respondent in the appeal), Shelley Rumball, was injured in a motor vehicle accident on Dec. 28, 2014. Prior to the collision, she had been employed as an educational assistant. She submitted a disability certificate (OCF-3) and an employer’s confirmation form (OCF-2) following the collision. Her insurer, Traders General Insurance Company (Traders), paid her IRBs from Jan. 4,2015, to Feb. 25, 2015, when she returned to work.
On May 31, 2015, Rumball stopped working again due to her injuries. She did not return to work.
Prior to the accident, in 2014 Rumball started a wedding planning business. She was to complete her first contracts in 2015. She had made no income at the wedding planning business prior to the collision. In 2015, she completed the outstanding contracts with help from her family and did not make an income. She did more wedding planning work in 2017 but did not earn an income.
Rumball submitted a second claim for IRBs on June 13, 2017, with a new disability certificate (OCF-3) submitted on Oct. 26, 2017.
Preliminary issue — limitation period
Traders denied Rumball’s second application for IRBs. When Rumball brought an appeal before the Licence Appeal Tribunal, Traders responded with a preliminary motion to determine whether the application was statute-barred. Per s. 56 of the Statutory Accident Benefits Schedule (SABS), an appeal to the Licence Appeal Tribunal under s. 280 of the Insurance Act shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
At first instance, the tribunal adjudicator found that Traders did not provide clear, unequivocal denial of Rumball’s claim for IRBs. The denial letter left open the proposition that with a further completed disability certificate, a further entitlement could be recognized. Therefore, there was no effective denial of Rumballs’ IRBs and the two-year limitation period set out in s. 56 of the SABS does not apply.
Traders appealed the decision.
The Divisional Court has jurisdiction to hear an appeal on a question of law only pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act. The standard of review was correctness. There is no right of appeal on fact, or on mixed fact and law without an extricable question of law.
The Divisional Court upheld the tribunal’s decision. The decision in respect of the application of the two-year limitation period was not a question of law. The tribunal found as a fact that the denial letter was ambiguous and that it allowed for the reintroduction of the claim with provision of another disability certificate. As the denial letter was ambiguous, it was not a valid denial, and therefore the two-year limitation period to appeal the denial did not begin.
Post-104 test for Income Replacement Benefits
When someone claims IRBs under the Ontario SABS, there are two tests that the claimant must meet. In the first 104 weeks following the collision, the claimant must demonstrate that they suffered a “substantial inability to perform the essential tasks of their pre-accident employment.” After 104 weeks have passed, the applicant must demonstrate that they suffer from a “complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.” These tests are defined in s. 6 of the SABS.
The tribunal found that as of Dec. 29, 2016, and onwards, Rumball did not meet the post-104 test. The adjudicator noted that Rumball was a trained wedding planner, and that based on the medical evidence provided, she did not believe that Rumball was completely unable to work as a wedding planner. She found that Rumball’s medical evidence was dated by the time of the hearing.
Rumball appealed this decision.
The Divisional Court considered whether the post-104 “complete inability” test included an analysis of whether other suitable alternative employment must be reasonably comparable to the insured’s former job in terms of status and reward. The Divisional Court concluded that “reasonably suitable employment” does not necessarily need to be commensurate with the insured person’s pre-accident employment in nature, stature and remuneration. Justice Mark L. Edwards, writing for the panel, wrote:
While the Court of Appeal endorses reference to earlier jurisprudence, including cases from FSCO [Financial Services Commission of Ontario] and now the LAT, as clarifying how specialized tribunals interpret and apply the Schedule, those decisions are not binding on the court. While those decisions include as part of the post-104 disability test a test that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages, we do not accept that is the test set forth in the Schedule. As such this court, being bound by the decision of the Court of Appeal in Burtch [Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479], concludes that the only test to be applied in establishing an entitlement to post-104 IRBS is the one set forth in the Schedule and it does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages [para. 60].
The onus was on Rumball to establish that she was disabled and met the post-104 test set forth in the SABS. It was incumbent upon her to provide evidence, including opinion evidence, that was not only persuasive, but timely. In her case, she provided evidence from her family doctor, and outdated opinion evidence from 2017. The adjudicator was entitled to conclude that based on the evidence before her, Rumball was not completely unable to work in a job for which she had suitable training, education, or experience.
Applicants bear the burden of proving their entitlement to the benefits they seek. They bear the financial burden of obtaining costly opinion evidence to prove their cases. They must ensure the most up-to-date and relevant information is available to the decision maker.
Furthermore, it appears that if an insured is capable of doing some sort of work for which they are suited by reason of training, experience or education regardless of remuneration, they will have a hard time passing the post-104 test for IRBs. This may have a chilling effect on insureds attempting a work hardening program, which often incorporate working at reduced hours or volunteer work.
There is now little incentive to participate in such programs, as an insured runs the risk of immediately being cut off their IRBs as they try to build up to a successful return to work. In the past, the insured had the comfort of knowing that their IRBs would continue during the return-to-work process until the return to work was proven successful.
Finally, insurers must make sure that any denial of benefits is clear and unequivocal. If the insured will not have the opportunity to “reapply” for a specified benefit, the insurer should advise the insured right away.