Citation: Rochon v. Intact Insurance Company, 2026 ONLAT 24-009951/AABS

Licence Appeal Tribunal File Number: 24-009951/AABS

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:

Carol Rochon

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

John M. Bray, Counsel

James Ross, Counsel

For the Respondent:

Jonathan Wong, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Carol Rochon, the applicant, was involved in an automobile accident on September 17, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from January 5, 2023 to ongoing?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is entitled to an IRB in the amount of $400.00 per week from January 5, 2023 to ongoing, plus interest.

4I find that the respondent is not liable to pay an award.

PROCEDURAL ISSUES

Exclusion of Clinical Notes and Records

5The applicant submits that the respondent has selectively curated the clinical notes and records (“CNRs”) of the applicant in an attempt to circumvent the rule in Browne v. Dunn, 1893 CanLII 65 (FOREP), [1983], 6 R. 67 (H.L.), and attack her credibility without affording her an opportunity to respond. The applicant requests that this evidence not be admitted as the applicant was not afforded an opportunity to explain the alleged statement. In the alternative, the applicant asks that little weight be attributed to this evidence given its unfairness or that she be granted leave to file an affidavit to respond to each issue.

6I find that the applicant has not specifically referred to which CNRs were selectively curated to attack her credibility. I find that the respondent is entitled to refer to and provide submissions on the CNRs that it finds relevant to the issues in dispute and to make submissions. The applicant is then given an opportunity to provide reply submissions to refute the respondent’s submissions. I find that the applicant did not use her right of reply to make her arguments or address the CNRs relied upon by the respondent. The applicant had ample opportunity to respond to the respondent’s submissions and reply to any statements made. I therefore do not agree to omit or attribute less weight to the respondent’s submissions that discuss the CNRs.

7I further do not grant the applicant leave to file an affidavit to respond. I find that the applicant had the right to file a motion after the submission of the respondent’s submissions to seek an order granting her the right to file an affidavit and chose not to pursue this opinion. I find that seeking such relief in her reply, is not the appropriate course of action as the hearing was concluded by the time her reply submissions were reviewed.

8I therefore do not grant the applicant’s requests with respect to the respondent’s submissions on the CNRs in evidence.

Exclusion of the Nurse Practitioner’s Evidence

9The applicant requests in her reply submissions that the opinion of the nurse practitioner should not be admitted into evidence. The applicant argues that the respondent has not provided evidence of the nurse practitioner’s qualifications to provide an opinion, the nurse practitioner’s knowledge of the applicant’s training, education or experience at the time the statement was given, the evidence on which the opinion was given, nor whether the nurse practitioner’s opinion would remain the same if the subsequent functional abilities and vocational testing were presented to her. She further argues that the nurse practitioner would not be qualified as an expert to provide this opinion and should not be admitted in this written hearing.

10Again, the applicant has not referred the Tribunal to which specific evidence or the name of the nurse practitioner’s opinion they are seeking to omit. Upon my review of the evidence, it appears that the respondent refers to a CNR from Ann Desrosiers, RNEC dated April 8, 2022 which is provided within the CNRS of University Health Centre. I find that the applicant attended with Ms. Desrosiers to fill out an insurance form and therefore Ms. Desrosiers was entitled to provide her opinion on the document she was filling out. I find that the applicant would not have attended with her to fill out this form if she believed that she was not qualified to complete it. I find that the respondent was then entitled to provide submissions on the comments made in the CNR. While the applicant in reply was entitled to make submissions as to why Ms. Desrosiers statement is false or cannot be relied upon, I do not find that she has directed the Tribunal to any reasonable basis for this CNR to be omitted from the evidence before me.

ANALYSIS

Entitlement to Post 104-Week IRBs

11I find that the applicant is entitled to post 104-week IRBs.

Law

12To receive payment for post 104-week IRBs under s. 6(2)(b) of the Schedule, an applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience (the “complete inability test”).

13The Court of Appeal decision in Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 (“Burtch”), identified three principles to properly interpret the “complete inability test”:

a. A suitable alternative occupation must be reasonably comparable to the insured’s former job both in status and in reward.

b. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required.

c. While the primary focus in determining whether a job is a suitable alternative is on the insured’s functional limitations, job market considerations are also relevant.

14The Court of Appeal decision in Traders General Insurance Company v. Rumball, 2025 ONCA 656 (“Rumball”), sets out the factors that must be considered under s. 6(2)(b) of the Schedule:

In order to make this determination, the decision maker must consider all relevant evidence and factors, including whether any alternative employment is employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward. These factors are not stand-alone components of the test but inform the evidence-based determination of whether the insured person has suffered a complete inability to engage in any employment for which they are reasonably suited by education, training or experience.

Parties’ Positions

15The applicant seeks an Order reinstating her IRBs from the date they were terminated on December 15, 2022, as the evidence establishes that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. She argues that the alternative employment positions proposed by the respondent are not suitable based on her impairments.

16Prior to the accident, the applicant was employed as a janitor/custodian from 2013 to 2020, which involved medium to heavy physical demands and constant standing, walking, bending and lifting. She earned $20.00 hourly. Prior to this position, she worked as a kitchen helper at a restaurant from 1989 to 2013.

17In terms of education, the applicant completed grade 11 in secondary school and was three credits short of graduating, as she discontinued school to work at her mother’s restaurant. She was a below average-to-average student, achieving grades in the 60 and 70 range.

18The applicant submits that as a result of the subject accident, she sustained a trimalleolar fracture of her right ankle when she slipped exiting her vehicle. She underwent open reduction and internal fixation the same week, followed by multiple surgeries for infection and hardware removal. She submits that her right ankle injury has left her permanently unable to perform or retrain for any employment she is reasonably suited for.

19The applicant submits that she is entitled to post 104-week IRBs, based on the report of Dr. Pradeep Alexander, dated February 22, 2024, which concluded that she has permanent impairment with respect to the function of her right ankle. She further relies on the Functional Capacity Evaluation (“FCE”) report of Jennifer Steller, kinesiologist, dated May 31, 2024, which places her in the sedentary Physical Demands Category. She submits that the report of Nadia Talbot-Fletcher, vocational evaluator dated June 13, 2024, identifies no viable occupations including sedentary ones, because the applicant lacks proper computer/keyboarding skills and requires frequent/lengthy breaks which the recommended occupations cannot accommodate.

20With respect to the Insurer’s Examination (“IE”) Vocational Assessment report by Bhavana Bagga, dated December 7, 2022, the applicant submits that the five suitable occupations proposed of retail customer service clerk, telemarketer, cashier, front desk clerk and information clerk are unrealistic when measured against her accident-produced restrictions and skills profile. She argues that the jobs proposed are fictitious and bear no reality to her situation. She also submits that the IEs are incomplete, and their methodology flawed.

21The respondent submits that the applicant does not meet the “complete inability test” as she does not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. The respondent submits that on December 15, 2022, as a result of the conclusions and opinions of the s. 44 IE assessors, it determined that the applicant did not meet the “complete inability test” and stopped paying IRBs, effective January 5, 2023.

22The respondent relies upon the Orthopaedic Surgery IE report prepared by Jacqueline Auguste, dated November 10, 2021, the Functional Capacity Evaluation IE report of Donna Smrek, kinesiologist, dated December 7, 2022, the Vocational Assessment and Labour Market Survey report prepared by Ms. Bagga dated December 7, 2022, and the Orthopaedic Surgery IE report of Dr. Auguste, dated December 7, 2022.

23The respondent relies upon the Court of Appeal decision in Burtch, which identified the three principles to properly interpret the post 104-week test. It submits that the Court in Burtch concluded that it is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. Rather a job for which an insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required.

24The respondent submits that the applicant’s assertion that her current level of computer ability and alleged ankle issues are indicative of an unsuitability for the alternative job positions proposed by Ms. Bagga is patently unreasonable. Ms. Bagga’s assessment recommended some short-term computer training, and any such training would be required for any job or field that the applicant enters into. It argues that any new employee seeking a position as a customer service clerk, telemarketer, front desk clerk, information clerk or even a cashier would require some level of training on specific systems and programs used by the business in question.

25The applicant in her reply submissions states that this dispute turns on whether she is able to successfully retrain for any of the proposed alternative employment options put forward by the respondent and if so, is she able to be employed in any of the alternative employment. The applicant submits that the answer to both questions is no.

26The applicant submits in her reply submissions that she is not able to successfully retrain for any of the proposed alternative employment options put forward by the respondent. With respect to the cashier position, she is not physically able to do the job. With respect to the remaining positions, she does not have a high school diploma, she would struggle with keyboarding related tasks due to her reduced range of motion in her left hand and reduced performance with manual handling tasks, and her typing difficulties are disabling. She further submits that retraining would likely be unsuccessful.

Suitability of the Alternative Employment Options

27It is clear from the evidence provided that the parties agree that the applicant suffers a complete inability to perform the essential tasks of her pre-accident physically demanding job as a janitor. The issue before the Tribunal is whether the positions proposed by the respondent are reasonably suitable employment alternatives.

28Generally, the Tribunal has defined what constitutes reasonably suitable employment as “employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity. The work should also be comparable in terms of status and wages.” See: Rumball. I agree and apply this principle to this case.

29I find that the roles proposed by the respondent are not suitable against the applicant’s physical complaints and identified skill level.

30I find the Vocational Assessment report of Ms. Talbot-Fletcher persuasive. I find upon review of her report, that in addition to the applicant’s right ankle pain, she reported bilateral shoulder and neck pain, hand and finger pain, hip pain, right leg pain as well as emotional issues. I note Ms. Talbot-Fletcher’s opinion that in reviewing the applicant’s pre-accident skills, education and experience, she was most suited to occupations reliant on her physical abilities.

31With respect to the position of a cashier, I find that the applicant is not physically able to perform this position due to her impairments. The core tasks of the position include standing at a checkout, repetitive reaching and lifting grocery bags (often 10kg). I accept the evidence of Dr. Alexander that the applicant suffers a permanent impairment with respect to the function of her right ankle because she is limited in her ability to stand, walk, kneel, crouch or do anything active. I further find that the evidence of Ms. Steller in her FCE report confirms that the applicant’s standing work and walking are limited to a maximum of 6-34% of the day with positional changes while having an antalgic gait and she is limited to 7.5 lb occasional/10lb rare lifting. I also find that the IE report of Ms. Smrek, determined that working as a cashier was not within the applicant’s physical abilities. I therefore agree with the applicant that she would not be able to perform the physical requirements of a cashier who is required to stand at a checkout and repetitively reach and lift grocery bags

32With respect to the position of a telephone solicitor and telemarketer, I find that on a physical level, this role requires a generally sedentary position physically linked to a desk/computer. I find the opinion of Ms. Talbot-Fletcher persuasive that prolonged sitting exacerbates the applicant’s right ankle stiffness which would affect her overall productivity and comfort. In addition, due to her left-hand range of motion, she would have difficulties with keyboarding tasks. Given her medical history and reduced mobility, Ms. Talbot-Fletcher concluded that the applicant would experience difficulties maintaining consistent productivity and performance in a telemarketing role. Her pain and fatigue would likely lead to frequent breaks and decreased efficiency, impacting her ability to meet her job expectations. I therefore fine that the position of a telephone solicitor and telemarketer is not a suitable position.

33With respect to the roles of a customer service clerk, information clerk and front desk clerk, I find that each occupation is in the limited strength demand category. I agree with Ms. Talbot-Fletcher that while the main body position is sitting, this depends on the work environment and certain positions do require standing for some or all of a shift which the applicant would struggle with. In addition, all three occupations require upper limb coordination likely due to the need to operate a computer or perform writing tasks, which the applicant reports limitations with throughout the medical evidence. I therefore accept that these positions are not suitable based on the applicant’s physical limitations.

34I find that even if the applicant was physically able to perform these roles, these three occupations indicate that “completion of secondary school is usually required”. I find that due to the applicant’s age and her general learning aptitude, that returning to school is not a reasonable option. On the KBIT-2-R, a test measuring intelligence and cognitive abilities the applicant scored in the Below Average range. On a test of Verbal Ability, she scored in the Low Average range (17th Percentile). I agree that the applicant’s Verbal Reasoning score in both Ms. Talbot-Fletcher’s report and Ms. Bagga’s report, support that the applicant would struggle to complete her high school education. I further accept Ms. Talbot-Fletcher’s comments that as the applicant does not believe in her abilities, when compounded with low mood and low motivation, this would make education overwhelming and negatively impact her self-perception regarding her intelligence.

35With respect to the applicant’s computer skills, it is also clear that she does not have the skills required for these positions. Ms. Bagga in her assessment report recommended that the applicant would benefit from receiving some short-term computer training to assist her in retraining. While I agree with the respondent that it is customary to have a period of training for any new position, there are no particulars provided by Ms. Bagga as to the extent of the retraining that would be required. The issue is whether the upgrading and training is substantial as set out in Burtch. I do not accept the respondent’s submission that because she is in possession and has regular use of a smartphone that she therefore has the skills to perform the recommended positions. In addition, while the respondent makes submissions about the computer skills that are required for each of the positions recommended, no evidence of the actual computer skill requirements for each of the position or the amount of retraining required has been provided. I find that submissions on their own are not evidence.

36I therefore find that the applicant has proven on balance of probabilities that she is not physically capable of performing the recommended proposed positions recommended by Ms. Bagga. I further find that pursuing a GED based on her age and aptitude scores is not reasonable. Finally, I conclude that she would require substantial retraining to perform any computer skills which is contrary to the principles set out in Burtch.

37While the applicant in her submissions claims entitlement to post 104-week IRBs from December 15, 2022 and ongoing, I find that the respondent’s denial letter indicates that her IRBs were stopped effective January 5, 2023. Therefore, I find that the period in dispute is from January 5, 2023 and ongoing which is entirely within the post-104 week period.

38For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to post 104-week IRBs from January 5, 2023 to ongoing.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to post 104-week IRBs, interest is payable pursuant to s. 51 of the Schedule.

Award

40The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

41While the issue of an award is listed as an issue in dispute in the Case Conference Report and Order, I find that the applicant did not provide any submissions on this issue. I therefore find that she has not proven on a balance of probabilities that she is entitled to an award.

ORDER

42For the reasons outlined above, I find that the applicant is entitled to an IRB in the amount of $400.00 per week from January 5, 2023 to ongoing, plus interest. I find that no award is payable.