Employed During a Period of Illness?

In the recent Licence Appeal Tribunal decision released on September 30, 2019, P.K. and Pembridge Insurance Company (Tribunal File Number: 18-000865/AABS), Adjudicator Reilly concludes that P.K. (the Applicant) was employed for 26 of the 52 weeks before the accident even though the Applicant had only worked for 20 of the 52 weeks before the accident and therefore, is entitled to income replacement benefits in accordance with Section 5(1) of the Schedule.

At the time of the accident, P.K. had not worked since February 18, 2015 due to health reasons and did not return to work or try to return to work at any time prior to the motor vehicle accident on August 25, 2015.  Prior to this, P.K. had worked full-time for a total of 20 weeks.  The employer issued a Record of Employment (“ROE”) indicating P.K. ceased working due to illness.  Several sick notes were sent from P.K.’s family doctor to his employer indicating he could not return to work and was undergoing an investigation of his medical condition. In the medical records, it was noted that it was P.K.’s intention to return to work once his period of illness ended.  An Employer’s Confirmation Form (OCF-2) was completed indicating P.K. had worked for 20 weeks, was absent from work as he was on sick leave from February 18, 2015 and still off work on medical leave at the time of the accident.  P.K. had also submitted an application for Employment Insurance (“EI”) benefits where he indicated his intention to return to work.  His application was initially approved and then later denied.

P.K. submits that he was employed for at least 26 of the 52 weeks before the accident and argues that the factor to determine if he was employed at the time of the accident is based on the intention of the employer and employee.  In support of that position, he references the case Madore and Co-operators (FSCO A-004305, August 24, 1994) where Arbitrator Macintosh noted that “individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence.”

Pembridge Insurance Company argues that P.K. does not satisfy the test for entitlement under Section 5 of the Schedule since he was not employed for at least 26 of the 52 weeks before the accident or receiving EI benefits at the time of the accident.  Specifically, Pembridge Insurance Company argues that:

• There was no evidence that P.K.’s employment was ongoing as his pattern of work was interrupted;
• The sick notes from P.K.’s medical doctor indicated that he could not work and gave no timelines about a return to work;
• The employer issued a ROE which severed the relationship with P.K.;
• No evidence established that P.K. was still considered an employee of the company; and
• There was no contact between P.K. and/or his legal representative and his employer about returning to work.

Consistent with the case Madore and Co-operators and considering the ROE, OCF-2, EI application and medical notes provided, Adjudicator Reilly concludes that the employment relationship continued during the period of illness and therefore, P.K. was employed for 26 of the 52 weeks before the accident.

Read the decision in full detail here:

P.K. v Pembridge Insurance Company, 2019 CanLII 101661 (ON LAT)