Both the insurer and the claimant appealed the Tribunal’s decision that the claimant was entitled to IRBs up to the 104 week mark. The insurer appealed the finding that the limitation period did not bar the IRB claim because the denial was not clear and unequivocal. The claimant appealed the finding that she was not entitled to post-104 week IRBs. The Court dismissed both appeals. Regarding the limitation period, the Court noted that the matter was one of mixed fact and law. The Tribunal’s finding that the denial was not clear and unequivocal was not open to appeal as it was not an error of law. Regarding the post-104 week IRBs claim, the Court held that the only applicable disability test is the “complete inability” test in the SABS. The Court rejected the claimant’s argument that the standard described in Burtch v. Aviva (a test stating that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages), as it was not stated in the SABS. The Tribunal held that the claimant had reasonably suitable alternative employment available to her, and that she had some functional ability to work in the retail sector. As such, there were no reviewable legal errors for the Court to address.
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