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Post 104 Weeks Entitlement to IRB Benefits

If you have been involved in a motor vehicle accident you are able to collect no-fault Statutory Accident Benefits (“SABs”) provided by your insurer.

 

One of these benefits is Income Replacement Benefits (“IRBs”), which received if the accident causes you to miss work as a result of the accident. If you are deemed eligible, the amount of IRBs received is 70% of your gross pre-injury income, up to a maximum of $400 per week. This maximum can, and in most cases, should be purchased for a small premium from your insurer to increase the $400 per week limit to $600, $800 or $1,000 per week. Any income received while receiving IRBs, is deducted from the entitlement. The IRB amount is also adjusted following the injured person’s 65th birthday,  

 

Part I - Entitlement to IRBs: First 104 Weeks 

 

A person can only receive IRBs if they are entitled to them under the Statutory Accident Benefits Schedule (“SABS”). According to the SABS, the “insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one of the following conditions: 

 

The injured person was 


      a) Employed at the time of the accident; or 


      b) Unemployed at the time of the accident, but 

                    i) worked for at least 26 weeks of 52 weeks before the accident or was receiving EI benefits at the time of the accident; and  
                    ii) was at least 16 or was excused from school under the Education Act at the time of the accident; or 


       c) Self-employed; and within 104 weeks suffers a substantial inability to perform the essential tasks of that employment as a result of the accident. 

 

An insured person is not eligible for IRBs if they have elected to receive either a non-earner benefit or a caregiver benefit. The IRB is payable for the period in which the person continues to suffer a substantial inability to perform the essential tasks of his or her employment or self-employment. Due to the nature of the SABS, the threshold wording of ‘substantial inability to perform the essential tasks’ is influential. If this threshold is met and continues to be met, then the injured person can receive IRBs for 104 weeks, or 2 years. 

 

Part II - Entitlement to IRBs: After 104 Weeks 

 

However, the SABS also state that the insurer is not required to pay for IRBs following 104 weeks of disability, unless a higher threshold is met: 

  • 6 (2) The insurer is not required to pay an income replacement benefit, (b) 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. 
    Statutory Accident Benefits Schedule, s. 6(2)

This provision is noticeably stricter than the pre-104 requirement, as courts and adjudicators have interpreted this provision to toughen the threshold in two respects. First, the threshold changes from substantial inability to complete inability. Second, the inability is tested against the disability against other suitable employment opportunities, rather than just the person’s employment. 

 

Therefore, to qualify for an IRB after 104 weeks, an insured must satisfy two conditions: 

 

           1) There must be “suitable employment” which is identified according to a number of factors; and  

 

           2) The insured must suffer a “complete inability” to engage in this suitable employment. 

 

Interpreting the ‘Any Employment’ Clause 

 

The term ‘any employment or self-employment for which he or she is reasonably suited’ has been interpreted in a manner that is fact-specific and realistic in the circumstances of the individual plaintiff. Therefore, the job must be similar in (1) nature, (2) status, and (3) remuneration, with factors in this analysis including the insured’s age, qualifications, training, and market conditions. However, the Court of Appeal has stated that if a new position does not require substantial training or upgrading, it may still be found reasonably suitable. 

 

In Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479, a plaintiff was injured in a motor vehicle accident, which resulted in him being unable to return to work as a general labourer. The SAB insurer paid IRBs for 104 weeks due to his inability to perform the essential tasks of his employment. At the end of this period, the defendant took the position that the plaintiff did not meet the higher standard of complete inability and terminated the income replacement benefits. They claimed that the plaintiff could have become a long-haul trucker, despite not having the requisite license or training. The court held that although the insured person lacked the formal qualifications, a job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required. 

 

“(24)  The proper test … is whether, ‘as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience’.” 
           Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 at para 24

 

These principles have been accepted by the LAT on numerous occasions. For example, in 18-001878 v Guarantee Insurance, 2019 CanLII 22207 (ON LAT), the adjudicator held that “he term ‘suitable employment’ means employment in a competitive, real-world setting, taking into account an employer’s demands for reasonable hours and productivity, and the work must be comparable in terms of status and wages.” 

 

Summary 

 

Determining entitlement to post-104 IRBs can be a complex task that requires vocational and transferrable skills-based assessments. Working with a personal injury lawyer will help you get these supports and assert your rights to compensation under the SABS. 

The personal injury lawyers at Littlejohn Barristers have significant experience representing clients dealing with Statutory Accident Benefits claims for Pre and Post-104 IRBs. If you have been in an accident or have been denied compensation or disability benefits, contact our Barrie office at 705-725-7355 to see if we can help. 

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