Merelyn Williams v. General Accident Assurance Company of Canada, 2000 ONFSCDRS 231

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 231

Appeal P00-00004

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MERELYN WILLIAMS Appellant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA Respondent

Before: Susan Naylor, Director's Delegate

Counsel: Linda A. Hanson (for Merelyn Williams) Scott Densem (for General Accident)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that

1. The appeal is allowed in part. The arbitrator's order dated December 6, 1999 is varied by adding the following as paragraph 2:

2. General Accident Assurance Company of Canada shall promptly deliver a loss of earning capacity offer to Merelyn Williams.

3. If the parties wish to file additional submissions relating to the issue of appeal expenses, they should do so in writing within 21 days of the date of this decision.

December 29, 2000

Susan Naylor Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is another in a line of cases about when someone has access to loss of earning capacity benefits ("LECBs") and the interaction between income replacement benefits and LECBs. They arise under the Bill 164 compensation regime¹ and, in particular, the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, O. Reg 776/93 as amended ("SABS-1994 ")².

General Accident Assurance Company of Canada ("General Accident") cut off Merelyn Williams' income replacement benefits ("IRBs") some weeks before the 104 week mark. Had they continued to that point, Ms. Williams would have had access to LECBs under Part VI of SABS-1994. An arbitration was held in regards to her continued entitlement to IRBs. The arbitrator held that IRBs were to be reinstated for another year, at which point Ms. Williams no longer met the test for IRBs. He did not address General Accident's obligation, if any, to make an LECB offer, or to pay further benefits pending such offer. Ms. Williams appeals the order, seeking confirmation of her right to an LECB offer, and to additional IRBs until the LECB process has been invoked.

II. BACKGROUND

The salient facts are as follows:

Ms. Williams suffered a whiplash injury in a car accident on May 20, 1994. Her recovery was complicated by chronic back pain and psychological problems, which prevented her from returning to her employment. Ms. Williams received IRBs until April 27, 1996. General Accident terminated benefits after receiving the report of a Designated Assessment Centre (DAC) concluding that, while Ms. Williams had some residual problems, she was not substantially disabled from her employment.³ It is not disputed that General Accident followed the proper procedures for terminating benefits.

Ms. Williams ultimately challenged General Accident's decision, going through mediation and then applying for arbitration in the summer of 1998. Her right to ongoing IRBs and to LECBs was placed squarely in issue.⁴ The case proceeded to a hearing in July 1999. At this point, more than five years had elapsed since the accident, and three years since the passage of the 104 week mark.

After hearing the evidence, the arbitrator ruled that Ms. Williams was entitled to IRBs for another thirteen months, until June 1, 1997. The arbitrator decided that, at this point, Ms. Williams was not substantially disabled from her regular full-time job demands. Ms. Williams does not challenge this finding. The arbitrator's decision identifies entitlement to ongoing IRBs as the sole issue for determination. No mention is made of the LECB issue anywhere in the decision.

General Accident paid Ms. Williams the additional IRBs as ordered. However, it refused to make an LECB offer, or pay additional IRBs, stating that it had fulfilled its obligations. It argues that the entire focus of the hearing was on whether Ms. Williams continued to be substantially unable to perform her essential job tasks. The arbitrator addressed this question, and Ms. Williams has no further remedy or cause for complaint. General Accident argues that the arbitrator's limited ruling makes complete sense, viewed in context. It states that SABS-1994 is intended to provide compensation where there is total or partial disability and that, since Ms. Williams has been judged capable of returning to her former employment, she does not have a compensable loss as contemplated under the statutory accident benefits regime.

Ms. Williams counters these arguments, submitting that the point of the arbitration, in large measure, was to establish whether she satisfied the pre-condition to payment of LECBs — i.e. continued disability at 104 weeks. She says that, since she qualified for IRBs at 104 weeks, General Accident has no choice but to make an LECB offer and must pay IRBs until it does so. She asks that the arbitrator's order be varied accordingly.

II. STATUTORY CONTEXT

The interaction between weekly benefits and LECBs has been the subject of Commission and judicial decisions. The relevant provisions are intricate and how they fit together is not obvious.

LECBs are intended to compensate for permanent or long-term loss or reduction in earning capacity. The Commission has described them as "the benefit paid after two years for persons with permanent economic loss."⁵ LECBs are a critical part of the "exchange of rights" under the Bill 164 regime, where accident victims lost the right to sue protected defendants for damages for pecuniary loss, but were given access to no-fault first party benefits that were more generous than previously available.

LECBs are payable during the insured's lifetime.⁶ The amount is based on the difference between the person's pre-accident earning capacity and post-accident earning capacity, as defined. The amount is subject to mandatory review twice — three years and eight years after LECBs are first paid.⁷ The benefit can be adjusted at that time if the applicant 's circumstances have changed. Outside of this, insurers cannot rely on improvements in the applicant 's condition to reduce benefits. Applicants are protected, however, as the benefit can be reviewed if there is permanent deterioration in impairment.⁸ These provisions are intended to provide those with long-term disability some measure of security and stability.

LECBs are quite distinct from IRBs and other weekly benefits. They do not have the same eligibility rules. However, weekly benefit requirements dictate where LECBs come into play. The pivotal time, generally, is the situation at 104 weeks.

Part VI of SABS-1994 deals with LECBs. They are paid instead of IRBs or other weekly benefits, if payment is authorised.⁹ Subsequent provisions set out a process by means of which payment of an LECB is authorised. They provide a road map for ascertaining what must be paid to those who qualify. The start of the route is the insurer's obligation to make an LECB offer after two years. Alternatively, LECBs may be substituted for weekly benefits at any time without the need to go through the formal offer process, if the insured is entitled to a weekly benefit and the parties agree to the switch.¹⁰

Section 21(1) lists seven situations in which an offer is required. The language and conditions vary depending on type of weekly benefit involved. Paragraph 21(1) 1. applies here, and states:

S. 21(1) Subject to subsections (7) to (9), an insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning capacity benefits if one or more of the following circumstances occurs:

1. The insured person qualified for weekly income replacement benefits under Part II and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits. [emphasis provided]

According to this section, the insurer's obligation to make an LECB offer is triggered if the insured "qualified for" IRBs, and "continues to qualify" for them two years after the onset of the disability. Generally, someone who does not still meet the disability test at 104 weeks does not qualify for LECBs.¹¹

Part II deals with IRBs. They cover those, like Ms. Williams, who have the requisite employment status or record and who are disabled from their employment within two years of the accident. According to s. 7(1), someone who suffers an impairment and meets these qualifications is entitled to IRBs. Benefits are then payable during the period the person "suffers a substantial inability to perform the essential tasks of that employment."¹² Choice of the word "qualify" in the phrase "continues to qualify" in s. 21(1) is somewhat puzzling and has given rise to some disputes in other contexts. For the purposes of IRBs and this case, however, it is understood as covering the key test of substantial inability to perform the essential tasks of the person's employment.¹³

If the offer is accepted or an alternative agreement worked out, payment of LECBs at the agreed-to rate is authorized. Otherwise, the process moves on. If the disagreement is over residual earning capacity, SABS-1994 provides for an assessment of the insured through a scheme of specialised DACs in order to ascertain residual earning capacity, ("RECDACs"). Both pre-accident earning capacity and the RECDAC's determination of residual earning capacity can be challenged through the dispute resolution process.¹⁴ Section 23 also deals with the basis of payment of benefits in the interim.

There are two relevant lines of cases in regards to these provisions. The first deals with termination of IRBs prior to the 104 week mark. The second deals with payment of benefits after an LECB offer has been made.

The issue of what happens if there is a dispute over whether someone continues to qualify for a benefit at 104 weeks has challenged courts and arbitrators. It has been raised at various stages in the proceedings and in various forms: as a preliminary issue or motion for summary judgement, request for interim benefits, or, as here, in the course of the final disposition of the dispute over IRBs.

It is accepted that a dispute over qualification (i.e. over weekly benefits) must be resolved before the LECB process gets underway. Conversely, the LECB route, including access to a RECDAC assessment and the pay-pending-dispute rules in s. 23, is deferred until after qualification is sorted out.¹⁵ Until that time, the situation is governed not by the provisions of Part VI, but by the rules relating to IRBs, or whichever weekly benefit is involved. These requirements include the rules preventing insurers from stopping weekly benefits except in accordance with the procedures set out in s. 64.¹⁶

Thus in Roach (Litigation Guardian of) v. Ward, [1998] O.J. No. 1402, (Gen. Div.), it was held that "nothing requires an insurer to make an [LECB] offer pending resolution of a dispute about qualification to receive such an offer." The insurer was required to continue IRBs under the terms of s. 64(11), pending resolution of the dispute, because the DAC assessment concluded that the insured remained disabled.

In Fry and Halifax Insurance Company, (OIC A96-001248, June 26, 1998) the arbitrator allowed the applicant's claim for ongoing IRBs after 104 weeks. She found that, as of the date of the hearing, he continued to meet the disability test and, accordingly, was entitled to receive IRBs until the LECB process had been invoked. This approach has been followed consistently in other cases.

Director's Delegate Draper considered the transition from IRBs to LECBs in back-to-back appeal decisions, Canadian General Insurance Group and Zehr, (FSCO P99-00010, June 11, 1999) and Gray and Zurich Insurance Company, (FSCO P98-00047, June 11, 1999).

Both decisions involved qualification criteria specific to other weekly benefits, which complicated the analysis and do not concern us. However, the delegate endorsed the approach that the LECB process is deferred until initial qualification ultimately is confirmed. In his view, "up to the determination of entitlement, the insured person is to be compensated through weekly benefits." He also suggested that, for the purposes of assessing LECBs, it is the person's current condition at the time of the offer that is important, not his or her condition going back to 104 weeks.

In Zehr, the arbitrator, in a preliminary ruling, ordered the insurer to pay four extra days of education disability benefits, taking Mr. Zehr to the 104 week mark, and to then start the LECB process. On appeal, the delegate took issue with the approach. He said:

If the arbitrator eventually finds that the insured person continued to qualify for weekly benefits at the critical time, this would trigger the LECB provisions, but only prospectively. In other words, the insurer would then have to make an offer based on the insured person's current situation, followed by the DAC process, if necessary. ...

My analysis suggests a different order than the one made by the arbitrator. Specifically, weekly benefits would be payable until the resolution of the dispute. At that point, the LECB provisions would take effect, with [the insurer] obliged to deliver a written LECB offer.¹⁷

The second line of cases addresses the basis of payment when an LECB offer has been made, but the parties disagree about the amount. They hold that, where an LECB offer is made, IRBs continue to be payable during the LECB process, but that the insurer can switch to LECBs based on the outcome of the RECDAC assessment.¹⁸

III. CONCLUSION

There are three distinct, but related, questions to be answered in this case:

• Is Ms. Williams confined to the issues explicitly dealt with by the arbitrator?

• Is General Accident obliged to make Ms. Williams an LECB offer?

• Is Ms. Williams entitled, at this point, to additional benefits beyond those ordered to be paid by the arbitrator?

General Accident suggests that Ms. Williams' access to LECBs is foreclosed. Its argument is part procedural and part substantive. It argues that the arbitrator's order was confined to IRBs and that is, accordingly, all Ms. Williams is entitled to. It suggests that if she wanted to make LECBs an issue, she should have limited her dispute to payment of IRBs up to the 104 week mark — as happened in the Zehr case — and not beyond. It argues that in any event, there has been a determination that Ms. Williams is able to return to her regular duties. Given this, an LECB offer essentially is redundant.

The problem in this case, as in so many others, is in the timing. The SABS-1994 provisions contemplate a smooth transition, in which the LECB process follows hard on the heels of the two-year mark. Part VI contains provisions to control delay within the LECB process, but they do not apply outside of it. Proceeding through the dispute resolution process to resolve the threshold dispute takes time. Furthermore, insureds have up to two years to dispute termination, as happened here. The regulations do not address what happens where there is a substantial time lag between the 104 week mark and confirmation of initial qualification.

General Accident relies on the fact that the arbitration decision is silent on the issue of LECBs. However, the record indicates that LECBs were not addressed simply because the arbitrator viewed Part VI as a non-issue until Ms. Williams' continued entitlement to IRBs was dealt with.¹⁹This hinged on the outcome of the arbitration. The arbitrator addressed Ms. Williams' entitlement to IRBs beyond 104 weeks because until the LECB process is invoked, applicants can look to IRBs, rather than LECBs, as a source of income.

The arbitration decision cannot be taken as signalling that General Accident has no further obligations nor does it foreclose Ms. Williams from seeking to clarify the parties' situation in the outcome of the arbitration. LECBs have been in issue all along. Ms. Williams is entitled to a ruling as to her right to an LECB offer and as to continued payment of IRBs in the meantime.

Turning to the former issue, in my view, the language of s. 21(1) 1. is clear and unambiguous as it applies to these parties. It requires an offer if someone continues to qualify for IRBs 104 weeks after the onset of disability. Qualification at 104 weeks is the portal to the process in Part VI. Once through, proof of disability is no longer a requirement. As with weekly benefits, access to LECBs is based not on proof of loss but on meeting qualifying conditions. Ms. Williams has been found entitled to IRBs at 104 weeks. General Accident must now make an LECB offer, and do so promptly, in accordance with the requirements of s. 21(1)1.

This does not mean that the reality of the finding that Ms. Williams was later able to perform her essential job tasks, is ignored.

The parties assume, I think rightly, that an offer (and any subsequent assessment of residual earning capacity by a RECDAC) relates to the situation at that time, not at 104 weeks, now long-gone. The language of SABS-1994 and the DAC guidelines²⁰ contemplate this. It was the view expressed by Delegate Draper in the Gray and Zehr decisions, and, in my view, is the most practicable and sensible approach in most cases, including this one. The timing of the statutory reviews then runs from the date the benefits are first paid.²¹

Ms. Williams' pre-accident earning capacity is calculated by reference to the pre-accident earnings on which her IRBs were based.²² The LECB is based on the shortfall between this figure and post accident earning capacity, i.e. what the person reasonably could earn in suitable employment. Therefore, as Ms. Williams candidly conceded, it may well be that any LECB payable in her case will be zero at this time.

The important point is that the LECB provisions "provide lifetime benefits to injured parties."²³ They are payable to those disabled on a long-term basis, i.e. those who are substantially disabled from their employment two years after becoming disabled. At that point, SABS-1994 treats the disability as permanent, affording access to a lifetime benefit to compensate for the diminution in earning capacity resulting from the accident.

A finding that Ms. Williams is substantially able to return to work does not rule out the possibility that her condition may deteriorate. Even assuming that, if assessed now, a zero LECB would be payable, the door remains open to re-evaluation should circumstances change. If the lapse is temporary, a short-term supplement may be payable.²⁴ General Accident's argument, if successful, shuts the door on Ms. Williams for now and the future. I do not think its position accords with either the language or purpose of the statutory scheme.

This leaves the issue of payment of IRBs in the intervening period.

The concern is that, by prematurely terminating weekly benefits, insurers can delay making an offer, and benefit from any improvement in the applicant's condition. Ms. Williams argues that continuing IRBs until the offer is forthcoming is the only way to counter the disadvantage applicants face. She states that, had the offer been made at 104 weeks, as it should have been, her LECB would have been determined by reference to her condition at that time, and would have been locked- in for at least three years.

General Accident stresses that it terminated IRBs properly, after a DAC report concluded that Ms. Williams could return to work. Furthermore, more than three years have already gone by since the104 week mark, by which time Ms. Williams' LECBs would have been up for review in any event.

At the core of the court and Commission jurisprudence is the recognition that IRBs do not automatically stop at 104 weeks. They continue until there is authority to end them. Therefore, insurers have been ordered to continue paying IRBs where benefits have been cut off without the benefit of a disability DAC or, pending resolution of a dispute, where the results of a DAC assessment are favourable to the insured. In the outcome of a dispute, where continuing disability is found, the insurer has been ordered to continue IRBs in accordance with the usual rules of entitlement. In my view, however, the cases do not go beyond this. Indeed, if Ms. Williams' argument is right, it would not have been necessary for arbitrators to consider entitlement for any period past 104 weeks except on an interim basis pending resolution of the threshold issue of qualification.

Ms. Williams was unable to point to any statutory authority supporting a general rule that IRBs continue pending an LECB offer, for those found no longer entitled to them. If anything, SABS-1994 suggests otherwise. The pay-pending-dispute rules in Part VI are themselves contingent on continued qualification for weekly benefits.²⁵ Furthermore, where benefits are extended on a procedural basis, such as under section 64, explicit provision for continued payment is made.

The main safeguard against unreasonable or arbitrary termination contemplated by SABS-1994 is the procedural protections contained in s. 64. These make the DAC, generally, the arbiter of payment pending the dispute. In this case, the insurer complied with the required rules. After a full hearing, the results of which are not otherwise challenged, General Accident was ordered to pay back-benefits and to continue making payments for a limited period. In my view, that is the extent of Ms. Williams' entitlement to payment of IRBs. The LECB process should be viewed as now taking over.

The process of resolving disputes over qualification for LECBs should be viewed as part of a broader process for sorting out who may receive those benefits and how much they should receive. The whole may break down into discrete stages, but determination of LECBs for those qualifying is the ultimate end.

Arbitrators have scope to address issues of delay, prejudice and inappropriate insurer conduct, in the context of individual cases. They may make interim orders pending a decision as to either initial qualification or the amount of LECBs.

Furthermore, unreasonable delay in payment may attract a special award and unwelcome regulatory scrutiny. If an insurer has been dragging out the process, whether in relation to resolving the issue of qualification or in making an offer after qualification is confirmed, there are mechanisms available to deal with the problem. However, this was not the basis on which this case was argued and no facts have been raised that would warrant extraordinary relief.

The arbitrator found that Ms. Williams was able to return to work after about a year beyond the 104 week mark. Even if an offer had been made at 104 weeks, the amount of any LECB would have been up for review in three years and likely would have reflected the improvement in her condition. Even if an offer had been made at 104 weeks, it is not necessarily the case that Ms. Williams ultimately would have recovered more than the amount she has received.

This decision confirms that no further IRBs are payable for the period past June 1, 1997. However, it does not follow, should the amount of Ms. Williams' LECB turn out to be more than zero - for example, because her condition has deteriorated since the arbitration - that any LECBs payable are to be paid only prospectively, leaving her without recourse for the intervening period.

In Zehr, Delegate Draper held that the LECB process is triggered prospectively. However, he was addressing the timing of the evaluation of the person's condition, not the effective date from when LECBs, once ascertained, are payable. These are two different issues. It is not entirely clear to me whether the approach taken at the arbitration level in Zehr - weekly benefits to 104 weeks, then LECBs - contemplated the former, as thought on appeal, or is perhaps better explained as relating solely to the later.²⁶

SABS-1994 does not address gaps in payment, possibly because it was not contemplated that an applicant's condition might change during the time it took to resolve the question of initial qualification. Sections 20 and 31 indicate that IRBs and LECBs are not both paid for the same period, but Part VI does not otherwise explicitly address the date from when LECBs are effective. In my view, however, it stands to reason that any LECBs ascertained as payable in Ms. Williams' case, would be payable retroactively to when her IRBs ended. The issue of IRBs relates to compensation while the process is in progress. However, once the process is at an end and the LECB ascertained, I see no reason why Ms. Williams should be out of benefits for any period after 104 weeks, when she first qualified for an offer. Such an approach may be subject to the objection that it provides a back payment higher than her condition at the time would warrant. In my view, however, this may be viewed as a reasonable compromise, to some extent counter-balancing the effect of the delay in the resolution of Ms. Williams' qualification for LECBs.

Unless I hear from the parties within 21 days, I will proceed to determine appeal expenses without further submissions.

December 29, 2000

Susan Naylor Director's Delegate

Date

Footnotes

1. 1Insurance Act, R.S.O. 1990, c. I-8, as amended by the Insurance Statute Law Amendment Act, S.O. 1993, c. 10.
2. 2O. Reg. 776/93 was substantially amended by O. Reg. 781/94, effective December 31, 1994. In GAN Canada Insurance Company and Lehman, (FSCO P97-00064, August 10, 1998), Delegate Draper held that changes to the pay-pending-dispute rules in s. 23(8) of the original version of the regulations had retrospective effect, applying to accidents happening in 1994. An application for judicial review of this decision was dismissed. This case does not turn on the amendments and, unless otherwise stated, reference to SABS-1994 is to the version of the regulations as amended.
3. 3Report dated February 23, 1996, from Capital Vocational Assessments.
4. 4See the Report of Mediator dated June 3, 1998; Application for Arbitration filed on August 25, 1998; Response by Insurer filed on September 30, 1998; and pre-hearing letter dated February 18, 1999 amended on February 25, 1999, confirming the outcome of discussions at the pre-hearing held on February 9, 1999.
5. 5Commissioner's Bulletin 29/94.
6. 6Section 20(2). The amount is adjusted at age 65: s. 35.
7. 7Section 33
8. 8Section 34
9. 9Section 20(1)
10. 10Section 24.
11. 11Section 22(1) 2. provides a limited exception where the person has returned to work. For a discussion of this exception, see Allstate Insurance Company of Canada and Wright, (FSCO P98-00051, January 18, 1999), application for judicial review dismissed, May 16, 2000.
12. 12Section 8
13. 13See e.g. Fox and Economical Mutual Insurance Company, (OIC A96-002040, February 17, 1998), in which Arbitrator Palmer referred to it as relating to the "primordial tests of section 7 and Part II."
14. 14S.23(4) and Mihichuk v. Allstate Insurance Co. of Canada (1998), 38 O.R. (3d) 763 (Gen. Div.).
15. 15Arbitrator Palmer explained the rationale in Fry and Halifax, (supra). She notes that the relevant provisions are concerned with procedural disputes about the amount of an LECB offer. They are triggered only if an insurer has accepted that an insured person qualifies for the offer in the first place, or an order has been made determining entitlement at 104 weeks.
16. 16Those rules provide for an independent assessment of an applicant 's condition by a (disability) DAC. The outcome of the DAC is not dispositive of the issue of entitlement, but determines payment of IRBs pending resolution of a dispute through the dispute resolution process. If the DAC report states the person is no longer suffering from a disability, the insurer may stop weekly benefits, (s. 64(11). If the report states that the person continues to be disabled, the insurer may dispute the obligation to pay benefits, but must pay the benefits until the matter is finally determined through the courts or arbitration, (s. 64(12)).
17. 17Despite signalling a different approach, Delegate Draper did not substitute a different order. The problem was that, because of the way the issues were framed, the arbitrator had made no findings as to Mr. Zehr's entitlement to weekly benefits past 104 weeks, and the parties never addressed the situation. Therefore, the delegate left the case open for additional input from the parties. There it seems to have rested.
18. 18See GAN Canada Insurance Company and Rocca, (FSCO P99-00003, July 20, 1999), and the cases cited therein. Under the original version of the governing regulations, until a dispute over the LECB amount was finally determined, weekly benefits continued to be paid, subject to the proviso: "if the person continued to qualify for those benefits." The language was changed in the 1995 revisions, leaving the obligations of the parties unclear. These cases considered the effect of the amendments.
19. 19Although the hearing was transcribed, transcription did not start until after the parties and arbitrator had made their opening remarks, including canvassing the issues. However, I was provided with an excerpt of the transcript in which the arbitrator briefly recapped the initial off-the-record discussions. It records him as saying: The issue is [Ms. Williams] continuing entitlement to income replacement benefits after the termination date. We've confirmed that there is no loss of earning capacity issue, at this time, to be decided. That will depend on the entitlement issue, which I will decide. (Transcript of the arbitrator's opening statement, July 19, 1999. p.2, line 16-21).
20. 20Residual Earning Capacity Designated Assessment Centre Assessment Guidelines, Minister's Committee on the Designated Assessment Center System, revised July 1999
21. 21Section 33
22. 22This is where, as here, the person was an employee before the accident. The rules relating to self employed persons are more flexible.
23. 23Hodgson v. Walsh, [1998] O.J. 3286 (Gen. Div.) (G. Thomson, J.), at p. 12, aff'd sub nom. Payne v. Alb (1999), 1999 CanLII 3741 (ON CA), 44 O.R. (3d) 598.
24. 24See section 32
25. 25See section 23(8).
26. 26This makes sense given that the test for education disability benefits changes after 104 weeks, and Mr. Zehr's ability to meet the changed test was in issue.