Applicant fails to provide detailed descriptions of pre-accident employment tasks - Applicant and Aviva General Insurance, 2018 CanLII 13150 ON LAT 17-002651 cision: January 2, 2018 Heard

May 20, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant fails to provide detailed descriptions of pre-accident employment tasks - Applicant and Aviva General Insurance, 2018 CanLII 13150 ON LAT 17-002651 v

Date of Decision: January 2, 2018
Heard Before: Adjudicator Chris Sewrattan

IRBs: onus on applicant to show eligibility for IRB; must show essential tasks of pre-accident employment; fails to provide details; applicant fails to show that accident is cause of leaving work

The applicant was injured in a car accident and applied for IRBs under the SABs from Aviva who denied payment for the benefit. The applicant appealed the decision to the LAT.

Issues:

1. Is the applicant entitled to receive an income replacement benefit of $400.00 per week from March 12, 2016 to the date of this hearing?

Result:

1. The applicant is not entitled to receive an IRB from March 12, 2016 to the date of this hearing

The Adjudicator reviewed the law and noted the test for entitlement to payment of an IRB is set out the Schedule. In the applicant’s case he is entitled to an IRB if he can prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a factory worker. For analytical purposes, the inquiry can be divided into three steps:

1. Was the applicant employed at the time of the accident;
2. Causation; and
3. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment? This step is itself divisible into two questions. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of his employment?

The Adjudicator noted the onus is on the applicant to make his case. He then went on to review the essential tasks of the applicant’s pre-accident employment.

At the time of the accident the applicant was employed as a factory worker. In his written submissions, the applicant explains that he helped to move vats that held up to one thousand litres of liquid in them, working 40-hours per week. The applicant more generally characterizes this as heavy lifting. He submits that he stopped working three days after the accident as a result of his injuries.

The applicant did not provide any detailed description of his pre-accident employment tasks are. He moved heavy vats; that is one task. But what other tasks did he have, if any? Moreover, an employment task is relevant in this hearing because it informs how the applicant must function to perform the task. The applicant has not advised how he went about moving the vats, and there were no details about what physical functions were required of him.

The Adjudicator was unable to determine which one of those is an essential task. In the circumstances of this case, it would be helpful to know what proportion of time the applicant spent on his different employment tasks. It is difficult to believe that the applicant moved heavy vats around without a change in task for 40 hours each week.

The difficulty with the applicant’s submission on this part of the s. 5(1) IRB test is that there are no specifics about why he stopped working on September 8. It is not enough that he believed that he could not continue to work. Thre needs to be an explanation of what tasks he could not perform and whether those tasks were essential. It could be that the applicant could not perform any of his essential pre-accident employment tasks. It could be that the applicant could perform some but not all of his essential pre-accident employment tasks.

On this basis the Adjudicator determined that the applicant is not entitled to receive an IRB from March 12, 2016 to the date of this hearing because he has failed to prove that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. Specifically, the applicant has not proven (1) what his essential pre-accident employment tasks are; (2) which of those tasks he is unable to perform; and, (3) the extent to which the applicant is unable to perform those tasks.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.