Moorley wins important Income Replacement Benefit decision

Our office recently received a decision from the Licence Appeal Tribunal from a long hearing argued by Partner Jeff Moorley.

This case involves the rare intersection between injury law and video games!

In this case, our client hit a moose while driving on Highway 527 near the turn off to the Lac des IIles mine, outside of Thunder Bay, Ontario. Our client was alone at the time and he lost consciousness.

Our client’s automobile insurer (Wawanesa) terminated his Income Replacement Benefits , claiming that he did not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

Wawanesa hired assessors who argued that our client could return to gainful employment. They also hired a private investigator to record video of our client in public and do an extensive investigation of our client’s online presence including his Facebook, Youtube, Twitch, and Discord social media accounts and more than 500 videos of him playing video games that had been posted online.

Wawanesa’s key argument was that the surveillance evidence proved that our client was not credible and that he underreported his limitations. In particular, the insurance company argued that the video game surveillance showed that our client could work.

After hearing the testimony from several experts over five days, the Licence Appeal Tribunal agreed that our client suffered a low back injury (i.e., disc bulge contacting nerves) and a mild traumatic brain injury that impaired his cognition.

The Licence Appeal Tribunal found that the surveillance of our client’s video game streaming did not undermine his disability claim, stating:

  • our client was not visible during the video gameplay;
  • there was no evidence that the client was earning income from streaming;
  • the video gameplay was not a transferable skill;
  • the video game streaming could be started or stopped at any time and could be done in a comfortable position, changing postures as needed;
  • the consequences of failure in a video game are drastically different than the consequences of failure in a work-like setting; and
  • the evidence of our client playing video games for hours at night demonstrated a lack of time management and focus on leisure despite it being detrimental to his well-being.

The Tribunal found that our client was entitled to income replacement benefits from the date of the denial, with interest, to present and ongoing.

White Macgillivray Lester LLP is pleased that the Tribunal agreed with our arguments and that our client will benefit from the financial security of his disability payments. We also believe that the decision provides clarity from the Licence Appeal Tribunal on the value of surveillance evidence from streaming platforms such as Twitch or YouTube.

P. L. v. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-010511/AABS