Many New Brunswickers are seasonal workers. Whether you work in the fishing, construction or farming industries, or any other type of seasonal employment, you should not be automatically excluded from loss of income benefits after being injured in an accident. To learn more about loss of income benefits in general, check out Section B: Loss of Income Benefits.
Purpose of the Policy
Every vehicle owner in New Brunswick is required to have coverage under the Standard Owner’s Automobile Policy. For more information about the Standard Owner’s Automobile Policy, please see our blog on Understanding your Automobile Insurance Policy.
Section B of the Policy provides no-fault benefits. These benefits are available to you if you are injured in a motor vehicle accident, regardless of who is at fault.
Section B benefits are meant to assist people who have been injured in car accidents. They include coverage for medical and rehabilitation expenses and loss of income. However, certain conditions must be met to be entitled to loss of income benefits. They are:
- You were “employed” at the time of the accident;
- You are unable to perform the “essential duties” of your job; and
- Your inability to perform the essential duties lasts at least 7 of the first 30 days after the accident.
Insurance companies have interpreted the “employed” condition to exclude seasonal workers from loss of income benefits in the past. Luckily, the courts have the last word on interpretation. Courts have stated that the answer to whether a seasonal employee is “employed” is based on the facts of every situation. The relationships between seasonal workers and their employers are often flexible and complex.
Were you employed?
If you are injured during the period in which you are actively working, there is no need to go much further; you have fulfilled the employment condition. The same applies if you are a seasonal worker who has worked more than six out of the last twelve months. However, if you are injured while you are off work and you did not work six of the last twelve months, your insurance company could try to label you as not meeting the employment condition and deny you loss of income benefits.
There may be another way to have you deemed employed, even if you do not meet the employment condition. It all comes down to evidence.
Evidence
You will need evidence of your employment. Here is some of the information to have you “deemed employed”:
- A written formal employment contract with your employer would be extremely helpful in establishing that you were in fact employed at the time of the car accident. However, this is rare with seasonal workers. If you do not have a formal written contract of employment, there are other ways to prove that you were employed.
- A pattern. If you have been working for the same employer or in the same industry on a seasonal basis, you may be deemed employed. You can use proof such as your income tax returns, your records of employment, or your employment insurance documents, for example. This will be important to help establish that you were likely to be seasonally employed in the future.
- A plan. If you do not have proof of consistent seasonal employment in the past, you may be able to prove that you would have returned to work if the accident had not happened. A letter from your employer with the following information could be sufficient:
- when you began working for them.
- when you finished working for them, either for the season or altogether.
- your expected return-to-work date if there had been no accident.
- details of any discussion regarding returning to work for the following season.
- whether they thought about calling you back for the next season.
Are you able to perform the “essential duties”?
It is important to note that you would only be entitled to these benefits if you were deemed unable to perform the essential duties of your employment as a result of your injuries. You can visit the “Are you able to work?” section of the blog on Section B: Loss of Income Benefits for more information on this criteria.
This may be difficult to verify because you may not be returning to work for several months. However, your doctor should be able to comment on whether he or she believes that you would not be able to perform the essential duties of your employment, regardless of whether your work is available to you at that time. For this reason, you should see your doctor immediately even if you are already off work when the accident happens.
If you are denied loss of income benefits on this basis, our team of personal injury lawyers can deal with the insurance company in order to ensure that you are treated fairly.
Have you been unable to perform your essential duties for 7 of the first 30 days following the accident?
Insurance companies are strict about this element. If you are not working at the time of your accident, your doctor should be able to comment on whether you would have been able to do your job in light of your injuries. Even if you are not working, you still need an off-work note.
What if the insurance company continues to deny benefits?
If the insurance company continues to deny loss of income benefits, you should contact our firm as soon as possible so that we can help. At Fidelis Law, we’re in your corner.