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 Volume. 5 Issue. 50- November 17, 2021



The first case reviewed this week involves an interpretation as to whether limitation applies for a Non-Earner Benefits claim from a Pre-June 2016 loss where the Disability Certificate was not submitted until post 104.

The second case deals with an Election issue where the Disability Certificate endorsed both IRB and NEB, yet despite the fact the applicant was employed, an election was required.


 

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Pre June 1, 2016 NEB Applications Face no Limitation?

No Limitation for NEB Application? – In Gulistani v Intact (20-002157) a July 2016 MVA, Gulistani sought NEB based upon the submission of an August 23, 2016 OCF3 that supported entitlement to NEB. However, the Tribunal agreed with Intact that the OCF3 was not submitted until February 19, 2019. Therefore, any entitlement would only commence on the latter date. Intact then took the position that the claim for NEB was statute barred, as the application was therefore not completed until more than 104 weeks post MVA. To that end, Intact relied upon Tribunal’s decision in K.A. v. Intact, which affirmed that “(s.)36 provides no exceptions to the above requirement that an insured seeking a NEB must submit a completed OCF-3 and that an insurer is not required to make payment until that application is complete. I further agree that the language is compulsory: s. 36 statutorily-bars an applicant’s claim where the OCF-3 was submitted following the 104-week period of NEB eligibility provided by s. 12.”

However, this is where matters get rather interesting. The referenced case was found distinguishable, as it dealt with a post June 1, 2016, version of the Schedule. In the matter at hand, the pre-June 1, 2016 applied, wherein “there are no time limits on the eligibility period for NEBs.” As a result, it was found that “the Tribunal’s finding in K. A. v. Intact that s. 36 statutorily bars an applicant’s claim where the OCF-3 was submitted following the 104-week period of NEB eligibility does not apply in this matter.” Therefore, the post 104 delivery of the OCF3 did not serve to bar the NEB claim. This, despite the applicable version of the Schedule at s.12(1) 1. stipulating entitlement still required that “The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident…). Ultimately however, the claim for NEB failed on its merits, or the lack thereof.



Election Required Despite IRB Eligibility

Election Required Despite Qualifying for IRB? – In Ganea v Travelers (19-012901) the Tribunal was asked to consider whether Traveler’s request for an OCF10 (Election) and an IE, was in accordance with s.36 of the Schedule. Ganea had submitted an OCF1 confirming employment, in addition to two Employment Confirmation Forms. In response Travelers advised that they would be securing a forensic accountant and requested a Disability Certificate (OCF3). The OCF3 submitted confirmed that Ganea suffered from a substantial inability to complete the essential tasks of her pre-accident employment and could return to work on a modified basis, and that she also suffers a complete inability to carry on a normal life. Travelers in response wrote to Ganea in May 2019, indicating that as the OCF3 indicated potential entitlement to both NEB and IRB, an OCF10 was required to determine which benefit was being sought.

An updated September 2019 OCF3 was subsequently submitted, again confirming entitlement to both NEB and IRB. Travelers once again requested an OCF10, further indicating that there would be an IE scheduled to address entitlement to both IRB and NEB. In December 2019, Travelers wrote to Ganea, indicating that given the failure to deliver an OCF10, they took the position that she had not met the obligation to formally apply for either IRB or NEB. In response, Ganea submitted that based upon both the OCF1 and OCF3, she was employed and working on the date of loss, and therefore was not eligible for NEB, further to s.12(1) of the Schedule, which stipulates entitlement to NEB requires that one “suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.” As a result, the request for an OCF10 was inappropriate. Ganea cited a prior Tribunal case in support of her position, MK v. TD.

The Tribunal disagreed with Ganea’s position that there was in fact an obligation on the part of Travelers to pay IRB. It was noted that s.35(1) of the Schedule, an OCF10 was required if “applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit”. S.35 makes mandatory the providing of an OCF10 where there is “possible entitlement to two or more specified benefits.” With respect to MK v. TD, the Tribunal found same as distinguishable, as in that case there was “no ambiguity” that the Applicant had met the two pronged test for entitlement to IRB, therefore not entitled to NEB as a result of s.12(1).

It is not clear where the Tribunal finds “ambiguity” in the subject case, as Ganea was also employed on the date of loss, with the OCF3 endorsing disability, hence seemingly “qualifies” for IRB.



Related LAT inFORMER Issue(s):

$10,000 S.25 IRB Report Not Payable & IRB Exclusions – No Insurance & No Licence



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Archive of LAT Updates

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January 24, 2024: One Assessment Process Produces Two Discrete Reports

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January 10, 2024: NEB Reinstated After Six Years Generates Award

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January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

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December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

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December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

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November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

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November 6, 2023: Medical Evidence Overrides Legal Referrals

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October 25, 2023: Application Seeking CAT Determination an Abuse of Process

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October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

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October 11, 2023: CERB is Income However Not “Gross Employment Income”

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September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

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September 25, 2023: Chronic Pain Distinct from Recurring Pain

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September 18, 2023: Inconsistency Argument Not Accepted

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August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

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