Volume. 8 Issue. 28 – July 31, 2024
This week the Tribunal considers two instances wherein the Respondent contended that the Applicant was barred from proceeding with their claim before the Tribunal.
In ‘When Complete is “Complete”’ involves submission of an OCF3. Then, ‘No Show No Problem’ presents a case involving multiple failures to attend properly scheduled IEs.
OCF3 Confirming Entitlement Not Required
When Complete is “Complete” – Injured in a September 2021 MVA, the Applicant Ahmed sought entitlement to Non – Earner Benefits (NEB). For their part, Allstate, in 23-013990 v Allstate, contended that Ahmed was barred from proceeding to a hearing regarding entitlement to same, given that the OCF-3 did not support entitlement to NEB. The initial application submitted by Ahmed indicated that he was unable to return to normal activities as a result of the accident. Subsequently, an OCF-10 dated October 26, 2021 confirmed an election to pursue NEB. Allstate, by way of a November 11, 2021 EOB indicated that it required a completed OCF-3 to determine eligibility for NEB.
Ahmed submitted the OCF – 3 January 13, 2022, that indicated he did not suffer a complete inability to carry on a normal life. In response, Allstate advised Ahmed that he was not eligible for the NEB since the OCF-3 did not support that he suffered a complete inability to carry on a normal life.” A second OCF-3 was submitted August 8, 2023, that now confirmed that Ahmed suffered a complete inability. Allstate then proceeded to pay NEB from the date of submission through to the 104 week mark.
Ahmed was seeking NEB for the period from four weeks post-accident to August 7, 2023. Allstate submitted that Ahmed did not submit a “completed application for the benefit” because the OCF-3 did not support entitlement to the benefit. However, the Tribunal determined that Allstate was “conflating the application for a specified benefit with the test for entitlement. They are separate steps. It is non-compliance with the application – the first step – that bars the applicant from filing an application to the Tribunal. Whether the applicant meets the entitlement test for NEB – the second step — should be addressed at a substantive hearing.”
The Tribunal reasoned that Ahmed had submitted a complete application, as the initial OCF-3 “contained all the information required for the respondent to decide on the applicant’s entitlement to NEB. The document confirmed the applicant’s disability (or rather, lack thereof), and entitlement to NEB.” In response to the OCF-3, Allstate had advised Ahmed that he was not eligible for NEB based upon the OCF-3. Never suggesting that the application was incomplete, the response addressed only entitlement, not application related issues.
Concluding, nowhere in the Schedule is there a requirement that the OCF-3 must be positive in order to be considered as complete. Therefore, Ahmed had for a fact submitted a completed OCF-3, and he was accordingly allowed to proceed to a substantive hearing regarding entitlement through to the date of the 2nd OCF-3, as this would be “best addressed by the adjudicator at the substantive hearing.”
Applicant Allowed to Proceed Despite s.44 IE No Show
No Show No Problem – In 23-015391 v TD Insurance, the Tribunal considered whether the Applicant Nayyar, injured in a September 2022 MVA was barred from proceeding with his claim for IRB, given his failure to attend a s.44 IE. Following the submission of a claim for IRB, TD advised Nayyar in July 2023 that he was not entitled, given the failure to provide information requested. In August 2023, TD then advised that the Minor Injury Treatment Discharge Report served to further disentitle him to IRB, having been discharged from treatment due to non-attendance. In December 2023 Nayyar filed his application with the Tribunal, and then in March 2024 TD advised that they were seeking IEs under s.44 to assess IRB entitlement.
It was the position of TD that further to s. 55(1)2 of the Schedule, Nayyar was prohibited from making an application to the Tribunal given the failure to attend the IE(s). Nayyar countered that 55(1)2 prohibits an insured person from making an application. He argues that to expand the reading of s. 55 to include applications already in progress would provide an incentive to insurers to make requests for examinations that may represent hurdles for insured persons to bring applications to a hearing. The Tribunal concurred that s.55(1)2 did not apply, “as it only prohibits an insured person from making an application, not continuing with one.” It was noted as well that TD had denied IRB on the basis of failing to provide documentation, as well as the failure to attend for treatment, having nothing to do with the failure to attend a s.44 IE.
The Tribunal noted that to accept TD’s reasoning, and bar the application until such time that the applicant attends the assessments, would require ignoring the initial denial and the legitimacy of appealing on the basis of that denial. It accepted Nayyar’s submission that the failure to attend “should present a prohibition on a hearing of specified benefits from the period of non-attendance, rather than a blanket prohibition on any application to the Tribunal at all.”
The Tribunal then turned to whether the scope of the substantive hearing ought to be limited. It was accepted that the failure to attend to first IE was due to counsel having made an inadvertent administrative error. The Tribunal accepted this as a reasonable explanation, having no reason to believe same not to be a genuine explanation. However, the subsequent failure to attend rescheduled IEs, with no correspondence or information regarding this failure was not excused. Absent a reasonable explanation, the Tribunal found that with the first of the rescheduled IEs to take place June 18, 2024, Nayyar was accordingly not to claim IRB for any period past this date during the substantive hearing.
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