PART II: Case Law, Best Practice and the Post-104 Week IRB Disability Test.

Abstract

The following is Part II of a three-part paper presenting holistic models of determining impairment and occupational disability with respect to common "own occupation" and "any occupation" definitions, especially in the motor vehicle accident (MVA) context. This segment of the paper is for the purpose of educating readers regarding pertinent case law and related evolving judicial/arbitral interpretations surrounding the Post 104-week income replacement entitlement within the Ontario MVA insurance system. Best practices in disa- bility assessment methodology and analysis are supported in the context of holistic occupational disability assessment models in relation to the relevant case law. Comparative analysis was also utilized to inform the reader of the emphasis upon the quality of activity engagement across pre- and post- 104 week spheres. Beyond the MVA sphere, medically-legally, the reviewed case law and related clinical best practices are fully germane to the long term disability and WSIB (workers' compensation) sectors. A specific area emphasized by authors is that the assessment of pain is more complex than is generally acknowledged in many disability assessments. Research on the impact of pain on individuals with disabilities and impairments arising from injuries sustained, clearly demonstrates that traditional pain measurements are often inadequate to fully determine the disability arising from pain. Finally, particularly in the context of In- surance Examinations (lEs and Independent Medical Assessments for LTD), the principle of competitive employability is often not considered as it should be in accordance with the existing case law.