Introduction

After 104 weeks of income replacement benefits, the test changes. The insured person has to prove a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience, under s. 6(2)(b) of the Schedule. It is the hardest test in accident benefits, and the traditional view is that most claims fail at this stage.

The modern decisions tell a more interesting story. The post-104 IRB wins in 2025 and 2026 are almost all psychological. That matters for every assessor, psychologist, psychiatrist, and clinic director whose reports are the evidence these cases turn on. The winning files share a pattern worth copying, and the losing files share mistakes worth avoiding. This post maps both, alongside the 2026 LAT decisions affecting HCAI invoicing that frame the year.

The Test the Report Has to Answer

Section 6(2)(b) requires complete inability in any employment, not the substantial inability test that applies in the first 104 weeks. The insured bears the onus on a balance of probabilities.

The Court of Appeal's 2025 decision (2025 ONCA 656) frames how the evidence gets weighed: an evidence-based, contextual analysis. Status, remuneration, and comparability to pre-accident employment are relevant factors, but they are considerations, not stand-alone requirements. A 2023 Aviva decision (2023 CanLII 58513) makes the point that matters most to report writers: the post-104 test is a legal test, not a medical question. An expert opinion is not strictly required, which means a report that only recites diagnoses and never engages the statutory test is leaving the decision to someone else.

The Bridge That Wins: Adaptation to Work

Look at the three strongest psychological wins and one thing appears in all of them: a bridge from the impairment ratings to the statutory test.

In a 2025 Certas decision (2025 CanLII 62739), the applicant's s. 25 psychiatrist found Class 5, extreme, impairment in adaptation to work and work-like settings. The insurer's own assessors found Class 4, marked, with attendance, punctuality, and routine problems. The adjudicator accepted the ratings as probative, not conclusive, and the bridge held: extreme adaptation impairment became complete inability to engage in any suitable employment.

A 2026 Definity decision (2026 CanLII 36999) shows the same bridge with a catastrophic foundation. The applicant met Criterion 8 on psychiatric grounds, had severe psychological deterioration across 2021 to 2023, and two psychiatric hospitalizations in 2024. The treating psychiatrist testified, and the insurer's own psychiatrist agreed with the diagnoses and found no cause other than the motor vehicle accident.

Another 2025 Certas decision (2025 CanLII 5849) went the same way: CAT Criterion 8 on psychiatric grounds, with the insurer's vocational evidence failing because it never integrated the psychiatric findings.

The pattern is clear. Adjudicators treat CAT and psych ratings as probative but not conclusive. The reports that win are the ones that state explicitly how marked or extreme impairment in adaptation translates into complete inability in any employment the person is reasonably suited for.

Real-world example: in the 2025 Certas file, the insurer ran surveillance. It could not depict pain, and after watching it, the insurer's own assessor kept the causation opinion. The surveillance evidence the insurer commissioned became part of the claimant's case. When both sides' experts converge on impairment, the dispute narrows to the legal test, and that is a dispute claimants keep winning.

Convergence Across Assessors Is the Strongest Pattern

The single most reliable indicator in the psych wins is convergence. In the 2026 Definity decision, the insurer's psychiatrist agreed with the treating diagnoses and found no cause other than the accident. In the 2025 Certas decision, the insurer's assessors found Class 4 adaptation impairment with the same functional problems as the claimant's experts. The battle of experts never materialized, so the insurer was left arguing around its own evidence.

For assessors, the practical point is direct: where the insurer's psychiatric or occupational therapy reports already find marked impairment in adaptation or significant barriers to employment, quote them in submissions. The insurer's own file is often the strongest evidence a claimant has so remember to review those reports in detail.

Why the Losing Files Lost

The losses are just as instructive.

A 2026 Wawanesa decision (2026 CanLII 12727) lost with a December 2022 psychology report finding no DSM-5 diagnosis and a July 2023 evaluation showing only mild psychiatric impairment with independent living and stable behaviour. The reports never applied the post-104 test. Diagnosis alone never wins, and neither does a mild impairment rating.

A 2019 Intact decision (2019 CanLII 119784) lost where the totality of the evidence did not support any psychological impairment at all. A 2018 RSA decision (2018 CanLII 81878) lost because there was no deterioration at the 104-week mark, and the file showed only four psych visits in 18 months. Sparse attendance hurts twice: it undercuts the diagnosis itself, and it leaves no contemporaneous record for the adjudicator to bridge to the statutory test. A 2023 Intact decision (2023 CanLII 26941) lost partly because there had been no psych referrals at all and a denied CPP-D application was used against the claim.

The lesson for assessors: a report that names a diagnosis but not the test, that sits on a file where the client attended only a few treatments, or that relies on CPP-D instead of clinical records, is a report an adjudicator will discount.

Deterioration Needs Dates

The wins are anchored in time. The 2026 Definity file anchored the decline to the CAT designation date of April 11, 2023, to failed return-to-work attempts in 2022, and to the 2024 hospitalizations. The adjudicator could see the downward line.

RSA is the contrast: no deterioration, no dates, no win. Adjudicators need anchors to quote. Assessors should document every failed return-to-work attempt, every hospitalization, and every CAT designation date during the post-104 period.

The Wawanesa Lesson: Document the Psychiatric Component of Pain

In a 2026 Wawanesa decision (2026 CanLII 68589), the insurer argued the applicant's pain behaviour was inconsistent with minor range-of-motion findings. That framing lost. The s. 25 psychiatrist had diagnosed somatic symptom disorder with predominant pain, major depressive disorder, PTSD, and generalized anxiety disorder, and the adjudicator accepted the psychiatric component of the pain experience.

The lesson: when pain complaints outrun physical findings, the file needs the psychiatric diagnosis documented. Physiatry-only attacks fail against a documented psych component. This is also where assessment quality gets tested, because the report still has to survive validity testing scrutiny at the LAT, so the diagnoses need to come through validated measures, not impressions.

What Assessors Should Write Differently

1. Write the adaptation bridge. State explicitly how marked or extreme impairment in adaptation to work and work-like settings translates into complete inability under s. 6(2)(b). 2. Keep contemporaneous records through the post-104 period. Document function, work-readiness discussions, and return-to-work advice at every visit between week 104 and the hearing. A client who attended only a few sessions leaves a thin record, and adjudicators notice, as in RSA where four psych visits in 18 months could not support the claim. 3. Document failed return-to-work attempts and deterioration anchors. Training attempts that collapse, attendance, punctuality, and others struggles to perform 4. Name the test. Reports that recite diagnoses or apply the pre-104 substantial inability test get discounted. Expressively apply the complete-inability test. 5. Use the insurer's own assessors. Where their reports find marked impairment in adaptation or significant work barriers, quote them. 6. Treat CPP-D as corroboration only. The stronger record is treating clinical notes and psych referrals. A denied CPP-D application will be used against the claim.

Conclusion

The post-104 IRB test is hard by design, but the modern decisions show the Tribunal reading psychological evidence closely and rewarding the files that engage the test. The wins turn on the adaptation bridge, on convergence across assessors, and on dated deterioration. The losses turn on diagnosis-only reports, mild ratings, and missing anchors.

For clinics, the workflow is concrete: write the bridge, name the test, anchor the timeline, and quote the insurer's own assessors. The burden of proof is the insured's, and the report is how it gets met, the same prove-it standard the Tribunal applies to billing above guideline rates. Review your last three post-104 files against this checklist before the next hearing date.