New Brunswick court finds plaintiff entitled to Section B benefits because of his inability to concentrate, process information quickly

A New Brunswick court has found that a man who suffered a closed head injury in a 2005 auto accident — which resulted in a lack of concentration, an inability to process information quickly and mental fatigue — is unable to engage in any occupation or employment for which he is suited by education, training or experience.

The insurer in the case, Wawanesa Mutual Insurance Company of Canada, paid the plaintiff Section B benefits of $250 per week under the terms of the man’s insurance policy until Dec. 31, 2007 for a period of 108 weeks.

After that time, the insurer discontinued payments based on the following language in the policy: “[N]o payments shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. . . .”

Wawanesa submitted to the court that the plaintiff’s injuries did not prevent him from engaging in “any” occupation for which he was reasonably suited.

The plaintiff, who was 61 at the time of the accident, worked as a technician for his wife’s orthotics business prior to the accident. He had also tried — and failed — to parlay his interest in fine arts photography into his own photography business.
Wawanesa terminated Section B benefits based on the assessments of the plaintiff made by a psychologist, a neuropsychologist, a neurologist, a psychiatrist and an occupational therapist.

For the most part, these specialists determined the plaintiff was able to work, the court found. The occupational therapist recommended occupations such as a bartender, mail postal and referral clerk or records and file clerk.

Ultimately, however, the court sided with the plaintiff’s family physician in the case. He noted the family physician had seen the plaintiff on an ongoing basis and was more familiar with the severity of the plaintiff’s condition. (The only medical expert in agreement with the insurer’s position who had seen the plaintiff multiple times was the psychologist, whose conclusion the judge described as “guarded.”)

The court also cited previous case law in the province’s Court of Appeal, which noted that benefits cannot be discontinued if the injured person is “so sick that he can take on only trivial or inconsequential work, or work for which he is overqualified, or work for which he is completely unsuited by background.”

The full decision can be found at: http://canlii.ca/en/nb/nbqb/doc/2011/2011nbqb381/2011nbqb381.html