In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
J.V.
Applicant
and
Echelon General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lindsay Lake
Appearances:
For the Appellant:
Gary H. Enskat, Counsel
For the Respondent:
Stan Savvateikine, Counsel
Heard IN WRITING:
March 11, 2019
OVERVIEW
1The applicant, (“J.V.”), was injured in a rear end automobile accident on October 26, 2015 (the “accident”). Following the accident, J.V. was off work from her position as a Sales Representative. The evidence is unclear as to exactly how long she was off work, but it appears as though it was no more than a few days. Once J.V. returned, she worked continuously for approximately two and one half years until May 7, 2018.
2On May 17, 2018, J.V. applied to Echelon General Insurance Company (“Echelon”), the respondent, for income replacement benefits (“IRBs”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). J.V.’s application was denied and, as a result, J.V. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3On July 30, 2018, J.V. returned to her pre-accident employment.
4A case conference was held on October 9, 2018, and the matter proceeded to a written hearing on March 11, 2019.
ISSUES IN DISPUTE
5The following issues are to be decided:
As a result of impairments sustained from the accident, is J.V. entitled to receive a weekly IRB in the amount of $400.00 for the period of May 7, 2018 to July 31, 2018?
Is J.V. entitled to interest on any overdue payment of benefits?
RESULT
6I find that J.V. is not eligible for IRBs for the period of May 7, 2018 to July 31, 2018 because she did not qualify for IRBs within 104 weeks of the accident and, as a result, there is no interest owing.
ANALYSIS
7An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident, as set out in s. 5(1) of the Schedule.
8J.V. made no claim for IRBs during the period within 104 weeks after the accident, as she was off work for no more than a few days and continued to work full-time for the remainder of this period.
9J.V. is seeking IRBs commencing on May 7, 2018, which is after 104 weeks of the accident. Section 6(1) of the Schedule states:
6(1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.
(2) The insurer is not required to pay an income replacement benefit,
after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.
10Echelon argues that entitlement to post-104 IRBs is conditional upon qualifying for IRB entitlement within 104 weeks of the accident. In this case, Echelon argues that, because J.V. did not qualify for IRBs at any time within the 104 week period, she is barred from claiming entitlement to IRBs in the post-104 week period. To support its position, Echelon relies upon the reconsideration decision in D.W. v. The Co-operators1 in which Executive Chair Lamoureux held that one’s entitlement to an IRB in the post-104 period is predicated on his or her eligibility for an IRB in the period before. Put another way, if one does not qualify for an IRB during the first 104 weeks, then he or she does not qualify for one later.2
11In the alternative, Echelon argues that J.V. fails to meet the post-104 week IRB test of being completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
12I accept that, at the time of the accident, J.V. was employed as a Sales Representative with [a uniform company], and had held this position since November 2013.3
13Based on the evidence before me, I find that J.V. did not suffer a substantial inability to perform the essential tasks of her employment within 104 weeks after the accident. J.V. consistently reported in the various insurer’s examinations (IEs) and in an initial consultation report with Dr. Rachel Skerrett, psychologist,4 that she returned to work days after the accident and continued to work full-time for the entire 104-week period post-accident, with certain accommodations from her employer, until May 7, 2018.
14As a result, I agree with Echelon and the decision of D.W. v. The Co-operators that because J.V. did not qualify for IRB benefits within 104 weeks of the accident, J.V. is not eligible for IRBs for any period following 104-weeks post-accident.
15Even if I am incorrect that one’s entitlement to an IRB in the post-104 period is predicated on his or her eligibility for an IRB in the period before, I find that J.V. has failed to prove on a balance of probabilities that she was completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience for the period of May 7, 2018 to July 31, 2018.
16J.V. has failed to provide sufficient evidence that she would meet the stricter post-104 week IRB eligibility test, as she submitted no information on her education, training or experience aside from a statement she made to an IE assessor that she obtained a hotel and restaurant management college diploma5 and that she was in sales prior to working at [a uniform company]. J.V. did submit doctors’ notes and reports supporting a leave from work; however, none of these notes or reports spoke to her ability to work in any other employment.
17I also give no weight to J.V.’s submissions that it was improper for Echelon to not schedule an IE following it denial of IRBs: the onus is on J.V. to prove her entitlement to IRBs on a balance of probabilities and not for Echelon to disprove her entitlement. I find that J.V. has failed to discharge this onus.
18As I have found that there are no benefits owing, no interest is payable.
CONCLUSION
19For all of the above reasons, I find:
(i) J.V. is not entitled to weekly IRBs for the period of May 7, 2018 to July 31, 2018; and
(ii) This application is dismissed.
Released: June 28, 2019
___________________________
Lindsay Lake
Adjudicator
Footnotes
- 2018 CanLII 8092 (ON LAT).
- Ibid. at para. 17.
- Submissions of the Applicant, tab 5.
- Ibid.
- IE Psychological Assessment report by Dr. Fabio Salerno, psychologist, dated March 27, 2017, Submissions of the Applicant, tab 9.