The Court held that the insured was entitled to income replacement benefits under the Ontario Statutory Accident Benefits Schedule. The insured’s disability was to be viewed in the context of her competitiveness in the existing marketplace.

Neumeyer v. Wawanesa Mutual Insurance Co., [2005] O.J. No. 3314, Ontario Superior Court of Justice

The insured was injured in a motor vehicle accident and sustained permanent brain damage. She received income replacement benefits under the Ontario Statutory Accident Benefits Schedule (the “Schedule”) during the initial 104-week period. The insurer took the position that the insured did not satisfy the test for the post 104-week entitlement because she was not suffering a complete inability to engage in employment for which she was reasonably suited by education, training or experience.

The Court found that the insured had problems with multi-tasking and concentration. The Court further concluded that the insured was incapable, as conceded by the vocational evaluation specialist called as a witness by the insurer, of working full-time at any of the positions identified by the insurer. The Court found that no evidence was adduced to show that part-time employment in any position suitable to the insured was available. The Court held that the insured was not obliged to take a house cleaning position as it would be a job substantially different in nature and status from her previous employment as a customer representative.

The insured’s disability must be viewed in the context of her competitiveness in the existing marketplace. The Court concluded on a balance of probabilities that there were no realistic opportunities for full-time employment for the insured given the expectations of a reasonable employer.

The Court also held that the cost to the insured of obtaining a medical report, the purpose of which was to attempt to convince the insurer after the cessation of payments that the insured was not employable, was an appropriate expense falling within s. 24 of the Schedule.

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