Law Times

PAGE 12 FOCUS May 3, 2010 • Law TiMes Decisions suggest more stringent approach to benefits BY SUSAN HUGHES For Law Times O ver the past few months, there have been a number of de- cisions regarding statutory ac- cident benefits that suggest the test for entitlement may be in- terpreted more severely than be- fore. One such case is Burtch v. Aviva Insurance Co. of Canada. Jennifer Griffiths of Zarek Taylor Grossman Hanrahan LLP says there were a couple of cases last year at the appeal level that seemed to follow the more stringent test in Burtch. "The appeal decision was in- formed by the factual findings the trial judge had made. At the same time, I do think that the outcome in this case was more restrictive than we have grown to expect in this field." The Burtch case, she points out, had some notable aspects. "Just the fact that the individual, Mr. Burtch, was not actually job- ready at the time that the ruling was delivered suggests that there was some risk for the defendant. I read this ruling as a cautionary tale to both sides because even though the Court of Appeal was pretty explicit that this wasn't a case about rehabilitation, it's pret- ty clear to me that if the insurer hadn't taken those extra steps af- ter they got the 104-week [assess- ment], hired a vocational assessor, identified with quite a degree of specificity what the alternative jobs were and what steps would need to be taken to access those jobs, then the outcome would have been different." The facts in Burtch were that the plaintiff, Wade Burtch, was 29 years old at the time of the accident with a Grade 11 educa- tion. He had been working as a general labourer, and his only pri- or experience was in doing heavy physical work. After the accident, Burtch suffered back and shoulder injuries that prevented him from performing physically laborious work. It was also alleged that he suffered some degree of cognitive impairment, and the first assess- ment concluded he was disabled from his own occupation within the 104-week period. A further assessment, however, concluded he didn't meet the test for disabil- ity at the 104-week period even though he wasn't job-ready. In a written report on the case, Griffiths said it's interest- ing to note that the Court of Appeal didn't address the issue of funding for training and that it appeared to be significant that Burtch indicated his willingness to consider a job in long-haul trucking. "The test was met sim- ply because the job identified was a job for which Mr. Burtch was reasonably suited by educa- tion, training or experience, even though modest further training would be required," she wrote. Griffiths added: "He was lacking both a licence as well as any experience or training in long-haul truck driving. This was accepted by the Court of Appeal as not being a substan- tial amount of upgrading." As to effects on short-term and long-term disability poli- cies, it's not clear whether there's a tie-in with the reha- bilitation aspects. Griffiths says that issue wasn't relevant for the purposes of this decision. "I think it probably is the lead- ing case for post-104 auto. The only thing I would add is that it is a cautionary tale for people working both sides of these files, and certainly if I was acting for insured individuals, even though it wasn't about rehabilitation or who had dropped the ball, I think that if the insured person accepts whatever vocational support is given to them, and there's more of a history when a matter gets to a hearing as to why rehabilita- tion failed, if it failed, then that's ultimately helpful to the insured person." Lawyer Greg Neinstein and Sebastian Gallagher, an accident benefits specialist at Neinstein & Associates, think Burtch was sur- prising but say it doesn't depart from the Wigle approach. "This case is consistent with many oth- er cases on this matter post-104," Gallagher says. Neinstein adds: "Basically, if a man is an accountant, insurers couldn't rely on a report that said Mr. Jones can't go back to being an accountant but he can go back to being a Wal-Mart greeter or a ticket kiosk attendant." But since Burtch's retraining was very similar in status and reward, they believe the case is consistent with Wigle. "The real intelligent conversa- tion comes down the road with arbitration, and where you have a lawyer on file, you have a healthy dialogue and discussion on the is- sues," Neinstein says. LT Since 1998 Untitled-2 1 4/27/10 10:58:13 AM enderson_LT_Mar29_10.indd 1 3/24/10 11:47:09 AM Baxter_LT_May3_10.indd 1 www.lawtimesnews.com 4/29/10 10:24:39 AM

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