Volume. 5 Issue. 53- December 8, 2021
First up this week is a notice sufficiency case where the Tribunal ruled the initial 5 notices were deficient in response to a Disability Certificate, finding the 6th attempt sufficient. Where did these notices fail?
The 2nd case, Foster v Aviva, the Tribunal upon reconsideration corrects an earlier error, confirming that benefits received under the CERB are in fact not deductible from IRB.
Finally, the Tribunal considers the reasonableness of OT services for an Applicant in a persistent vegetative state.
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Initial Five Notices Deficient
Sixth Time’s the Charm – In Kamavee v Royal & Sun Alliance Insurance (19-011975) Kamavee contended that RSA failed to fulfill its obligations under s.36 of the Schedule, following receipt of the OCF3 they failed to either pay IRB, properly notify reasons for denial or to make requests pursuant to s.33 of the Schedule.
RSA indicated that Kamavee failed to meet the requirements for initial entitlement, did not make a required WSIB election, and failed to make an Election of which Specified Benefit was sought (IRB, NEB or Caregiver). To that end, RSA referenced a January 23, 2017 letter that they argued was in compliance with the Schedule, however the Tribunal did not agree. Said letter indicated that Kamavee was obliged to make an Election, however failed to either pay IRB, seek documents under s.33 of the Schedule or deny entitlement for medical or other reasons.
RSA submitted that they did not breach s.36(4), having provided an Election form in accordance with s.35. The Tribunal however indicated “Section 35 does not allow for non-payment of the benefit because the election was not returned to the respondent within the specified time.” RSA further suggested that a February 2017 Election request was made pursuant to s.33, however the Tribunal found there to be no s.33 request tied to Specified Benefits. While the referenced document did make requests pursuant to s.33, all such requests were directed at medical/rehabilitation benefits.
Subsequently, RSA, in a March 6, 2017 correspondence, requested numerous documents, noting that if the requested information is not received within 10 business days, the Specified Benefit will cease as per section 33 of the Schedule. The Tribunal found for a fact that “this is the only letter that can be construed as notice that fulfills the requirement of section 36(4)(c). In other words, at this time the respondent has made a section 33 request with respect to the application for IRBs.” However, following this letter “the respondent at no time informs the applicant that it sees the applicant as non-compliant with the request, or that it is denying IRBs as a result of section 33.”
Subsequently, on May 18, 2017, RSA confirmed having received the Disability Certificate, advised Kamavee that they required an IE further to s.44 to address IRB entitlement. This letter, though, “did not provide reasons as to why it believes the applicant is not entitled to IRB.” A second letter from the same date requested documents pursuant to s.33, however, did not provide the applicant with notice of the consequences of his non-compliance, and does not indicate the deadline by which the information was required. Attached to the letter were 11 additional pages, including a reproduction of s.33. However, the Tribunal found that this was “provided without any context and is not helpful or meaningful to the applicant.”
Finally, RSA advised Kamavee in an October 30, 2017 letter that Kamavee was no longer entitled to IRB, same being discontinued as of November 14, 2017. This was found to be “the first letter that complies with section 36(4)(b), in that it denied the IRBs and provided the reasons for the denial.” The Tribunal found it “persuasive” that entitlement was “discontinued”, in that “while the respondent could have taken the position that the applicant was never entitled to IRBs from the time of the accident forward, it instead took the position that the applicant’s entitlement to IRB ceased as of November 14, 2017.” Given the series of deficient notices, IRB was found payable from January 13 through to October 30, 2017.
CERB Not Deductible
CERB not Deducted From IRB – In Foster v. Aviva (19-014657) , Foster sought reconsideration of a determination that benefits received under the CERB were deductible from IRB. Interestingly, Aviva in this matter agreed with Foster that the Tribunal had erred. The Tribunal agreed with the parties that the Tribunal had in fact erred.
It was noted that “Whereas IRBs are directly connected to, and calculated with respect to, an insured’s pre-accident earnings, CERB is not calculated with reference to income from employment. Indeed, everyone who is eligible receives the same amount without reference to the amount of income they earned pre-pandemic.” With CERB eligibility “not tied to employment status, it follows that it cannot be considered “gross employment income” under s. 4(1) because it is not analogous to “salary, wages and other remuneration from employment”, as the adjudicator determined. In turn, as CRB/CERB is not considered “gross employment income”, it cannot be deducted from an IRB under s. 7(3)(a).”
The Tribunal agreed with Foster’s expert, that “claimant need not be employed prior to receiving CRB/CERB and that payments for same are not made by an employer, but as part of an ad hoc government relief program paid by the Canada Revenue Agency”. Further CERB is not akin to EI as it not paid under the Employment Insurance Act, but rather under the Canada Emergency Response Benefit Act. Similarly, “being employed is not a prerequisite to receiving CERB and the applicant did not receive same as a result of being employed after the accident, meaning that CERB cannot be deducted from IRB under s. 7(3).”
OT Services for CAT
Eminently Reasonable to Fund Minor Improvements – The Applicant, in 20-007598 v Economical, was catastrophically impaired in a November 2014 accident, and remains in a persistent vegetative state. At issue was the balance of an OT treatment plan that was partially approved, intended to address cognition, exercises and sensory stimulation. Economical denied the balance based upon their expert’s opinion that it was not reasonable to continue with coma stimulation as the applicant had not demonstrated a significant change in his responsiveness over 3.5 years post-accident and because personal support workers can carry out the maintenance program required.
The Tribunal, though agreed with the Applicant that “it is clear based on the numerous reports and records in evidence that he requires ongoing rehabilitation that could potentially assist in his recovery…(and) it is reasonable to provide the applicant and his family with every chance possible at a better recovery.” The various reports and records provided “compelling evidence that the treatment recommended, at the relatively minor cost proposed given his CAT status, is reasonable to try to achieve the stated goals.”
The Tribunal afforded more weight to the Applicant’s treating team, who had the benefit of six years experience with him, as opposed to Economical’s expert, whose report was based solely upon a one day visit and file review. The Tribunal was “alive to Economical’s submission that the applicant has achieved little if any improvement from six years of therapy and that, given his very young age and CAT status, that maximizing the available funding to him is imperative. However the stated goals were “eminently reasonable”, and “it is not unreasonable to fund treatment that may lead to more improvements, however minor.”
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