Volume. 9 Issue. 5 – February 5, 2025
This week the Tribunal again tackles a matter wherein an OCF-3 endorsed entitlement to both NEB as well as IRB. At issue being whether under the circumstances the insurer was obliged to seek an Election of Benefits from the Applicant.
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No Election Required Despite Endorsement of IRB & NEB
Election Not Required – Despite being employed on the date of loss, the Applicant Ekefre, injured in a December 2021 MVA, sought entitlement to Non-Earner Benefits (NEB) from his insurer, TD. The Tribunal, in 22-009727 v TD Insurance, was tasked with determining whether TD was obliged to honour the claim for NEB, based upon what Ekefre alleged to have been non compliance with s. 36(4) of the Schedule.
Ekefre sought entitlement to a NEB based on procedural factors only, asserting that he submitted his Application for Accident Benefits (“OCF-1”), Disability Certificate (“OCF-3”) and Election of Benefits (“OCF-10”) supporting his entitlement to a NEB to TD. He further submitted that TD provided letters dated January 26, 2022, and February 23, 2022, that contained a boilerplate response without proper medical reasons for the denial, which is non-compliant with the requirements of s. 36(4) of the Schedule.
For their part, TD submitted that they provided sufficient reasons for its denial of the NEB pursuant to s. 36(4)(b) of the Schedule and that the specified benefit is not payable. TD noted that it provided Ekefre with notice explaining its denial of his entitlement to a NEB. The rationale provided indicated that “It stated the reason for its denial was that “Because you are eligible for an Income Replacement Benefit, you are not entitled to a Non-Earner Benefit.” TD further submitted that it is not required to provide a medical reason for the denial if a medical reason was not the basis for the denial.
Ekefre had submitted an OCF-1 in which he stated that he was “employed and working”, noting as well that his injuries prevented him from working from December 13, 2021, to December 17, 2021. He also submitted an OCF-3 that stated that he was working at the time of the accident and suffers a substantial inability to perform the essential tasks of his employment. Further, that he can return to work on modified hours and/or duties and was back to work on a trial basis.
The OCF-3 confirms as well that he suffers a complete inability to carry on a normal life. In response, TD advised Ekefre that “because you are eligible for an Income Replacement Benefit, you are not entitled to a Non-Earner Benefit”
Unsolicited, on February 4, 2022, Ekefre filed an OCF-10 electing to receive a NEB. Once again, TD responded by reiterating that “Because you are eligible for an Income Replacement Benefit, you are not entitled to a Non-Earner Benefit”. It stated that “there is no section of the Statutory Accident Benefits Schedule allowing you to make an election.” It advised that he was entitled to an IRB if he sustained an income loss and that it was waiting on his Employer’s Confirmation of Income Form and pay stubs to substantiate any loss of income.” The Tribunal noted that the denials from TD “informed the applicant that the reason for the denial of his claim for a NEB was because he was eligible for the IRB. I find that the respondent was not required to state its position on the applicant’s medical eligibility as that was not the basis for its determination. I do not find the respondent’s denial was a “boilerplate” response.”
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The Tribunal relied on the decision referenced by TD, the Court of Appeal in Varriano v. Allstate, which held that a medical reason for a denial does not have to be provided if there is no medical basis for the denial at issue. The Court in Varriano accepted the adequacy of the reasons provided for stoppage of the claimant’s weekly IRB, being that the benefit would be stopped because the claimant returned to work. The Tribunal further referenced Galdamez v. Allstate that found an applicant may be entitled to a NEB despite being employed at the time of the accident. In the case at hand, as the OCF-3 endorsed both IRB and NEB, TD was required to address entitlement to both benefits which it did in confirming that Ekefre was entitled to IRB and therefore was not entitled to NEB. Accordingly, Ekefre had not proven entitlement to a NEB due to TD’s non-compliance with s. 36(4) of the Schedule.
The Tribunal then turned to the requirement for an OCF-10 pursuant to s. 35(1) of the Schedule, Ekefre contending that same was required as he was as per the OCF-3 entitled to NEB and IRB. Ekefre further contended that the response provided by TD was legally wrong and that an election of benefits is available to the applicant, therefore, as the response by TD was legally wrong, it has not met the requirements of s. 36(4)(b) of the Schedule. As cited above, the response in question indicated in part that “there is no section of the Statutory Accident Benefits Schedule allowing you to make an election.”
The Tribunal however found “that the reasons provided by the respondent in its notice letter are not required to be legally correct. I rely on the Court of Appeal decision referred to by the respondent in Turner v. State Farm, where the Court of Appeal held that a denial must provide a reason for the refusal, however the reason does not need to be legally correct”. Therefore, TD was in fact not in non-compliance with s. 36(4) of the Schedule. As a result, Ekefre again had not proven entitlement to a NEB due to the TD’s purported non-compliance with s. 36(4) of the Schedule.
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