The insurer requested reconsideration of the Tribunal’s decision awarding post-104 IRBs entitlement and interest. The insurer submitted that the Tribunal erred when it relied on the trial decision in Burtch v. Aviva that post-accident employment that is substantially different in nature, status, and renumeration may not be considered an appropriate alternative. The insurer noted that the decision had been overturned at the Ontario Court of Appeal and the Tribunal could not rely on it. The insurer also submitted it was an error to find the nature of the claimant’s employment at a residence for assisted living to be substantially different in nature, status, and renumeration such that it does not qualify as a reasonable alternative form of employment, and that the Tribunal erred in not considering that unpaid hours the claimant spent at the residence as work and to conclude that the claimant was incapable of working full-time. Adjudicator Victor noted the in the Burtch decision, the Court of Appeal disagreed with the application of the test based on the particular facts of that case, not the test itself. Adjudicator Victor further noted in the original decision, the Tribunal found the claimant’s current part-time job was not an appropriate alternative to her pre-accident employment at a fast-paced restaurant for a number of reasons including part-time hours, the nature of the work that was sedentary and light duties, along with her very accommodating employer. The claimant was found not to be especially successful at her part-time job and under different management, she would have been let go. Adjudicator Victor found contrary to the Burtch v. Aviva decision that the claimant did not have suitable alternative employment available and retraining would be substantial.
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