The claimant sought reconsideration of the Tribunal’s denial of IRBs. The crux of the issue was whether the claimant could claim IRBs after the first 104 weeks without first receiving IRBs during the first 104 weeks. The Tribunal initially ruled that the claimant could not seek IRBs. Executive Chair Lamoureux confirmed the result, but on different reasons. She held that according to the language of the SABS and the Court of Appeal’s reasons in Wadhwani v. State Farm, an insured did have to first suffer a “substantial inability” within the first 104 weeks after the accident in order to receive any IRBs beyond the 104 weeks. Where the Executive Chair differed with the original decision was in her view that an insured’s entitlement to IRBs within the first 104 weeks could be determined looking to evidence generated after the first 104 weeks. Essentially, the claimant had to prove that he suffered a “substantial inability” within the first 104 weeks to receive IRBs, but that he did not have to satisfy that evidentiary burden before the 104 week mark passed. The reconsideration was ultimately dismissed because the claimant’s evidence was inconsistent and did not support the “substantial inability” test.
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