Volume. 8 Issue. 3 – January 17, 2024
This week the Tribunal considers, in ‘No Election No Problem‘, whether the applicant is barred from proceeding due to the failure to provide an OCF10 Election of Benefits, as well as whether the matter was appropriate to extend limitation under the LAT Act.
In ‘Approvals Determine Limits, Not the Incurred‘ the Tribunal considers whether an award is appropriate in a medical limits case.
Winter Virtual Training Courses
Secure your seat for inHEALTH’s 2024 Winter Virtual Training Sessions.
- BI Fundamentals: January 29th – February 2nd, 2024
- SABS Expedited: February 26th – March 1st, 2024
*Eligible Participants receive 9 Substantive – CPD hours upon course completion
Course details & register here +
No Election No Problem – In 22-009078 v Economical, the Tribunal considered whether the Applicant Ahmed was barred from proceeding to a hearing for the non-earner benefit in dispute because the applicant failed to file an OCF-10 to confirm an election of benefits, in addition to the fact that Ahmed failed to file their dispute within the two-year limitation period. Economical also contended that Ahmed was equally barred from proceeding to a hearing for a psychological assessment, given the failure to dispute their denial within the two-year limitation period.
Following submission of her application for benefits, Ahmed was advised that she was not eligible for income replacement benefit (“IRB”) based on the information that was provided. She was further requested to provide a disability certificate (“OCF-3”) for the respondent to determine whether she would be eligible for the non-earner benefit (“NEB”). Following receipt of the OCF3, Economical arranged an insurer’s examination (IE) that determined Ahmed was not entitled to NEB. Subsequently, Ahmed filed an application with the Tribunal, seeking entitlement to both IRB and NEB.
Economical countered that Ahmed had failed to submit an OCF-10 election form and that she cannot claim both IRB and NEB. Following review of the evidentiary record, the Tribunal found there to be no evidence that Economical provided Ahmed with notice as per the requirements of section 35(1), wherein they were obliged to provide notice for the need for the OCF10. Further, there was no evidence that Economical had ever in fact provided Ahmed with the OCF10, nor advised as to the need to provide an OCF10. While Ahmed had ultimately withdrawn the claim for IRB, she was nevertheless not barred from pursuing the claim for NEB in the absence of the OCF10.
Turning next to the contention that Ahmed was time barred from proceeding with the claim for NEB and the psychological assessment, the Tribunal found for a fact that the filing for NEB was two days late, the psychological assessment 23 days late. Therefore, the Tribunal considered whether the case was appropriate to extend limitation by way of s.7 of the LAT Act. The four factors (the Manuel factors) were then discussed in turn.
The Tribunal accepted that Ahmed had a bona fide intention to appeal prior to the limitation date as the evidence shows that she requested documents from the respondent and facilities for the purpose of disputing the denials at the Tribunal within the limitation period. They found the length of delay to be minor. There was determined to be prejudice to both parties, and as to the merits, neither party addressed the same.
Ultimately, the Tribunal accepted that Ahmed “met her onus to demonstrate that the limitation period for commencing her application should be extended because the delay is so minor that there is no prejudice. As such, I am exercising my discretion under section 7 of the LAT Act to extend the limitation period and allow her to proceed with her application before the Tribunal.”
Approvals Determine Limits, Not the Incurred
No Award in Limits Case – In 21-009116 v TD Insurance, the Applicant Correia, injured in a January 2016 MVA, sought entitlement to an OCF18 totalling $2018 for a psychological assessment. Denied by TD in June 2021, on the basis that an approval of the same would exceed the available limits of $50,000. It was indicated that there had been approvals of $49,562.99, with payments to date of $38,812.92.
In October 2021, Correia confirmed that he would no longer seek treatment for the previously approved yet not incurred items, and as a result, TD immediately approved the request for the psychological assessment. However, Correia opted to proceed to hearing with respect to the claim for an award.
The Tribunal did not agree with Corriea that it was the obligation of TD to confirm how much had actually been incurred, agreeing with the Tribunal in P.K. v. Coseco Insurance that an Applicant was in a better position than the respondent to know how much of the policy limit for medical and rehabilitation benefits had been expended as the applicant was the one consuming the services. The Tribunal further did not agree that there were sufficient funds available prior to the ultimate approval, as the available calculations prior to same would not allow for the approval given the approvals to that date.
Finally, the Tribunal did “not agree with the applicant’s argument that it was unnecessary for him to confirm that he no longer wished to utilize the remaining amounts from previously approved treatment plans before the respondent could approve the denied treatment plan. The applicant has not directed me to any authority to support that the respondent is required to approve treatment plans in excess of the policy limits. Further, pursuant to s. 18(3) of the Schedule, the respondent is not required to pay for medical and rehabilitation benefits in excess of the policy limits.” Accordingly, Correia was not entitled to an award as requested.
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!