Income replacement benefits after 104 weeks: does the alternative job have to pay comparably?

Two years after a car accident, the income replacement benefit gets harder to keep. For the first 104 weeks the question is whether you can do your own job. After that it becomes whether you suffer a complete inability to engage in any employment or self-employment for which you are reasonably suited by education, training or experience, under section 6(2)(b) of the Statutory Accident Benefits Schedule.

Insurers often meet that test by producing a list. An assessor names several occupations the claimant could supposedly perform, and the benefit stops. A frequent question from people in that position is whether the jobs on the list have to pay anything like what they used to earn, or whether any job at all will do.

A 2007 arbitration decision, Mack and Kingsway General Insurance Company, addressed that directly.

What happened

Fred Mack was injured in a motor vehicle accident on 4 April 2001 and received income replacement benefits from Kingsway. On 5 September 2003, at the post‑104 week mark, Kingsway terminated the benefit on the strength of an assessment by a designated assessment centre, then a standard step in the process.

The assessment concluded that Mr. Mack did not suffer a complete inability to engage in any employment for which he was reasonably suited, and listed sample occupations: tractor‑trailer driver, dispatcher, switchboard operator and storekeeper. His pre‑accident income had been $35,000 to $38,000. The entry level salary given for the switchboard operator role was $22,414.

What the arbitrator held

Arbitrator A.L. Sone rejected the list on several grounds. He found Mr. Mack a highly credible witness, found that his documented limits on sitting ruled out the driving, dispatch and switchboard roles, and that his difficulties gripping, lifting, pushing and carrying ruled out the storekeeper role. Then, at paragraph 42, he added the point that matters here:

In addition, the entry level salary of $22,414 listed for the switchboard operator position would be substantially lower than Mr. Mack’s pre‑accident income of $35,000 to $38,000.

At paragraph 43 he set out what the assessment had failed to do:

In my view, the Disability DAC failed to take into account several important factors in assessing whether Mr. Mack suffered from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. It did not sufficiently consider whether Mr. Mack was physically able to perform the types of occupations it listed, whether such work required training, whether it was available in the Kingston area or whether it offered appropriate remuneration.

He gave the assessment little weight, and at paragraph 55 gathered the objections into four:

• The occupations were physically unsuitable
• They required extensive retraining as a prerequisite
• They had significantly lower remuneration
• They were not shown to be available in the claimant’s area

Paragraph 53 is the sharper observation. Kingsway argued that Mr. Mack was in fact working, as a school bus driver and a water truck driver, which proved he was not completely unable. Sone accepted there was little difference in prestige or job satisfaction between that work and his pre‑accident job as a porter, but found there was a substantial difference in remuneration. The benefit was reinstated.

Where the remuneration point comes from

Sone did not invent it. At paragraph 51 he adopted Arbitrator Seife in Wigle and Royal Insurance Company of Canada:

If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative … one must consider such factors as … the hours of work and level of remuneration

That is worth noting because Wigle was confirmed on appeal, at OIC P96‑000025, 9 April 1998. The proposition that an alternative occupation has to be comparable in nature, status and pay is therefore better supported than a single first instance decision would suggest.

What “complete inability” means

The decision also collects the authorities on the threshold itself, which is useful in its own right. In Lombardi and State Farm, Arbitrator Sampliner held:

I find that “complete inability” does not require the degree of impairment that is as high as a “catastrophic impairment” so as to preclude legitimate claims for ongoing disability, nor so low as a “substantial inability”, as that would encourage specious claims after the first 104 weeks.

And in Terry and Wawanesa, Arbitrator Palmer rejected the idea that the test is passed by being able to perform part of a job:

Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits … Somehow the ability to engage in a reasonably suitable job, considered as a whole, including reasonable hours and productivity must be addressed.

On being told you did not try hard enough

Kingsway also argued that Mr. Mack had not conducted his job search “with sufficient enthusiasm.” Sone disagreed, at paragraph 45, noting that he had started looking for work immediately after the benefit was terminated and had made an appropriate search given his physical limitations and the limited opportunities where he lived. Local labour market reality was treated as part of the analysis, not an excuse.

What to take from it, and what not to

The useful proposition is that a list of occupations is not self‑proving. Whether the work is physically possible, whether it needs retraining, whether it exists where the claimant lives and whether it pays appropriately are all live questions, and an assessment that skips them can be given little weight.

What this is not is a rule that a lower paying job can never count, or that any particular gap in pay is decisive. Sone reached his conclusion on the whole of the evidence, including findings about credibility and physical capacity that were specific to Mr. Mack. A different record produces a different answer.

Four things that have changed since 2007

This is an old decision and the ground has moved under it in ways that matter.

• It was decided under the previous Schedule, O. Reg. 403/96. The post‑104 test was then paragraph 5(2)(b). The current equivalent is section 6(2)(b) of O. Reg. 34/10, and the wording is nearly identical apart from the addition of “or self‑employment”.
• FSCO arbitration no longer exists. Accident benefits disputes have gone to the Licence Appeal Tribunal since 2016. Decisions like this one are persuasive, not binding, and they were not binding on other arbitrators either.
• Designated assessment centres are gone. The mechanism that produced the report in this case was discontinued. Insurers now rely on their own assessments, but the questions Sone asked of a DAC report apply just as well to an insurer’s examination.
• The $400 a week in the order is historical. That figure is no longer in section 7, which since 1 July 2026 sets the weekly amount by reference to what the policy fixed rather than a figure in the regulation.

The last point carries a further one. Since 1 July 2026 the income replacement benefit is an optional benefit rather than mandatory coverage. If it was declined or reduced at renewal, the post‑104 test never arises. Our page on the 1 July 2026 changes explains how that works, and the accident benefits page sets out the system as a whole.

Exceptions may apply ‑ legal advice is strongly recommended for your particular situation.

Speak to a lawyer about a benefit stopped at the two year mark

If your income replacement benefit was stopped at 104 weeks on the strength of a list of jobs, the list is worth examining. Initial consultations are free. Our fee schedule is published in full, by stage of the case, on our Fair Fees page. Call 905-409-2438, send a text, message us on WhatsApp, or use the contact form.

Steven Polak is licensed as a lawyer in Ontario and practises with Lerners LLP at 123 Athol Street, Whitby.

Case discussed: Mack and Kingsway General Insurance Company, FSCO A04‑001040, [2007] O.F.S.C.D. No. 66, Arbitrator A.L. Sone, 28 March 2007. This is a case comment, not legal advice, and outcomes turn on the evidence in each file. Last reviewed 3 November 2026.