Written By: Lindsay Charles, Partner and Emily Roti, Summer Student
Volume. 9 Issue. 23 – July 23, 2025 – inHEALTH
A recent decision from Ontario’s Licence Appeal Tribunal (LAT) explains the meaning of“complete inability” in the context of part-time employment. The case involved a self-employed hairdresser who, despite returning to modified work, was found entitled to ongoing income replacement benefits (IRBs) beyond the 104-week mark. The ruling determined that limited work does not automatically disqualify a person from receiving long-term accident benefits under the Statutory Accident Benefits Schedule (SABS).
Background
The applicant, Ms. Thompson, was injured in a motorcycle accident in July 2018. At the time, she was a self-employed hairdresser, working around 30 hours per week over three days. She also earned additional income working two days a week as a paid caregiver for her grandchildren.
As a result of the accident, she was diagnosed with a fractured pelvis, concussion, post-concussion syndrome, chronic pain syndrome, and psychological impairments. These injuries left her unable to work for eight weeks. When she returned to work, she resumed hairdressing on a part-time basis with reduced hours and with modified duties, but she was unable to resume her caregiving job.
At first, Thompson received IRBs to make up for her loss of income. However, after 104 weeks, her insurance, Certas, terminated the benefit in November 2021. Certas relied on a series of insurer examinations (IEs) to support their decision, arguing that since Thompson had resumed part-time work, she no longer meets the legal threshold of a “complete inability to engage in any employment or self-employment.” This led Thompson to challenge the termination of benefits with the LAT, claiming she remained entitled to post-104 IRBs under section 6(2)(b) of the SABS.
Applicant’s Position
Thompson argued that although she tried to return to work full-time, she was not able to perform the duties of her pre-accident work. While she managed to cut hair for short periods of time, she had problems with her stamina and concentration. She could only work 10–12 hours per week, whereas she worked 30 hours a week before the accident. She was also unable to resume her caregiving role due to both physical and psychological limitations.
She also stated that her educational background, work experience, and ongoing impairments left her without the ability to get further education or transition into a different type of employment. In her view, this amounted to a “complete inability” to engage in any suitable work, as required by law.
Insurer’s Position
Certas maintained that Thompson’s return to part-time hairdressing demonstrated that she did not meet the post-104 “complete inability” test. They argued that her ability to perform aspects of her job showed she had recovered her functional capacity and could potentially perform other, less physically demanding work. Certas pointed to assessments that identified alternative occupations for Thompson and argued that these positions would be appropriate given her current limitations.
The Post-104 IRB Test
Under the SABS, once an insured person has received IRBs for 104 weeks, their ongoing entitlement hinges on whether they suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
It is a high threshold, and it’s not enough to show that a person is limited in what they can do. They must demonstrate that given their background and impairments, they are unable to engage in any suitable form of employment.
The Tribunal referenced the Burtch v. Aviva Insurance Company of Canada decision from the Ontario Court of Appeal, which shows some considerations the Tribunal has when assessing “suitable alternative occupations”:
- The alternative job must be reasonably comparable in terms of status and reward
- A role requiring significant retraining or upgrading is not considered suitable.
- While functional limitations are the main factor, job market realities are also relevant.
Tribunal Findings
The Tribunal noted that Thompson’s circumstances presented barriers to employment. She had no post-secondary education and no work experience outside of hairstyling and informal caregiving. These factors made retraining for a new occupation unlikely.
Additionally, medical reports showed that Thompson’s return to work had been limited and inconsistent. She could not work her pre-accident hours and had to cut many of herappointments short due to fatigue or cognitive issues. A neuropsychologist report confirmed ongoing cognitive impairments, including difficulty with memory, processing speed, attention, concentration, and word-finding. These issues affected her ability to multi-task resulting in mistakes such as mixing up hair colours or giving uneven hair cuts.
A chronic pain report concluded that Thompson would be restricted to light, paced work of just 8–10 hours per week on a permanent basis.
The Tribunal examined the alternative jobs suggested by Certas’ vocational assessors and found them unsuitable, as they did not match the status, flexibility, or reward that Thompson enjoyed as a self-employed hairdresser. Before the accident, she controlled her hours and worked in a role she found creative and fulfilling, but the proposed jobs offered less autonomy and were not comparable in reward or satisfaction.
The Tribunal found that even if these jobs were suitable, Thompson’s physical, psychological, and cognitive impairments would prevent her from performing them safely or effectively. Given her limitations, age, and background, retraining was also not a realistic option.
The Tribunal concluded that the evidence supported Thompson’s claim. Although she had returned to part-time work, it was not at a meaningful or sustainable level, and she could not reasonably pursue any other type of work based on her education, training, and experience.
The Tribunal confirmed that Thompson met the legal test for post-104 IRBs and ordered Certas to pay her $376.00 per week, minus any part-time earnings, from November 5, 2021, onward.
Reconsideration Request
After the decision, Certas filed a request for reconsideration, arguing that the Tribunal had applied the wrong legal test. Certas claimed the Tribunal considered factors like job status and reward when it should have focused solely on functional ability.
The Tribunal rejected this argument, saying that the correct legal test under section 6(2)(b) had been applied. The finding was that Thompson could not perform any suitable work due to her impairments not that the alternative jobs were less desirable.
The Tribunal noted that even without considering job comparability, Thompson’s medical evidence alone was sufficient to support ongoing IRB entitlement. The reconsideration request was dismissed.
Conclusion
This case shows that part-time work does not necessarily mean a claimant fails the post-104 IRB test. The focus remains on whether the claimant can reasonably work in any job they are suited for based on their background and abilities.
Claimants with ongoing medical impairments, limited education, or little work experience may still qualify for post-104 IRBs, even if they have made efforts to return to work in some capacity.