{"id":3003,"date":"2019-12-04T09:00:45","date_gmt":"2019-12-04T14:00:45","guid":{"rendered":"http:\/\/stage.tbkdev.com\/dev\/davismartindale.com\/src\/?p=3003"},"modified":"2020-06-15T12:11:59","modified_gmt":"2020-06-15T16:11:59","slug":"employed-during-a-period-of-illness","status":"publish","type":"post","link":"https:\/\/stage.tbkdev.com\/dev\/davismartindale.com\/src\/employed-during-a-period-of-illness\/","title":{"rendered":"Employed During a Period of Illness?"},"content":{"rendered":"

[vc_row][vc_column][basic_container container_size=”container container-narrow” bg_overlay=”overlay-light”][vc_column_text]In the recent Licence Appeal Tribunal decision released on September 30, 2019, P.K. and Pembridge Insurance Company (Tribunal File Number: 18-000865\/AABS<\/em>), 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.<\/p>\n

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.\u00a0 Prior to this, P.K. had worked full-time for a total of 20 weeks.\u00a0 The employer issued a Record of Employment (\u201cROE\u201d) indicating P.K. ceased working due to illness.\u00a0 Several sick notes were sent from P.K.\u2019s 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.\u2019s intention to return to work once his period of illness ended. \u00a0An Employer\u2019s 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.\u00a0 P.K. had also submitted an application for Employment Insurance (\u201cEI\u201d) benefits where he indicated his intention to return to work.\u00a0 His application was initially approved and then later denied.<\/p>\n

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.\u00a0 In support of that position, he references the case Madore and Co-operators (FSCO A-004305, August 24, 1994<\/em>) where Arbitrator Macintosh noted that \u201cindividuals 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.\u201d<\/p>\n

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.\u00a0 Specifically, Pembridge Insurance Company argues that:<\/p>\n