Redress Risk Management (post until May 31/19)

McLeish Orlando : Nick Todorovic and Hudson Chalmers, Summer Student

Income replacement benefits before and after the 104 week mark

Written By: Nick Todorovic and Hudson Chalmers, Summer Student 

When involved in a motor vehicle collision, you are able to collect no-fault benefits from your insurance provider. If you are unable to return to work as a result of your injury, then one of the benefits you receive from your insurer are income replacement benefits (IRBs). The amount received in IRBs is 70% of your gross pre-injury income, up to a maximum of $400.00 per week.

In order to be eligible for IRBs, you must be either employed or self-employed for at least 26 out of 52 weeks before the accident. Also, you must have suffered an impairment, which was directly caused by the motor vehicle collision, including both physical and psychological impairments. The test to determine whether you are eligible for IRBs is found in s. 6(1) of the Statutory Accident Benefits Schedule, where it states:

“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.”[1]

In order to qualify, you must pass the disability test, which involves identifying whether you are able are substantially prevented from engaging in your pre-collision employment tasks.

The threshold for receiving IRBs becomes much more difficult to pass after the 104 week mark. S.6(2)(b) of the Statutory Accident Benefits Schedule outlines the test for post-104 week IRBs as follows: “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.”[2]

Complete inability represents a higher degree of disability than substantial inability, raising the standard beyond a relatively sizable disability. The literal meaning of complete inability has been rejected because this would otherwise mean that the insured would have to be unable to perform any function of any job to qualify.[3] Reasonably suitable employment means that a suitable job must not be substantially different in nature, status or remuneration, and the insured’s age, qualifications and technical training and know-how are considered,[4] although if a new position does not require substantial training or upgrading, it may still be found reasonably suitable.[5]

In order to continue to qualify for IRBs, you may be required to attend any insurer examinations, where doctors will assess your ability to return to work; participate in the recommended rehabilitation program; and to make attempts to return to work. Failing to participate may result in the insurer stopping IRB payments until you do.

[1] Statutory Accident Benefits Schedule, section 6(1)

[2] Statutory Accident Benefits Schedule, section 6(2)(b)

[3] Terry v Wawanesa Mutual Insurance Co. (FSCO A00-000017, July 12, 2001)

[4] Horne v CIBC Insurance, [2001] O.F.S.C.I.D. No. 193, at para 16

[5] Burtch v Aviva Insurance Co. of Canada, 2009 ONCA 479, at para 24

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