Volume. 9 Issue. 7 – February 26, 2025
NEB Payable to 104 Week Mark Due to Technical Breaches
This week the Tribunal considers a case wherein the Applicant successfully sought NEB through to the 104 week mark, based solely upon the Respondent’s technical/procedural basis.
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Full NEB Granted on Procedural Basis – Injured in a January 2020 MVA, the Applicant Bergstrom, in 22-011676 v TD Insurance, sought entitlement to NEB through to the 104-week mark, citing multiple technical breaches on the part of TD. Bergstrom did not adduce any evidence with respect to the merits of his entitlement, with his arguments being solely related to technical or procedural breaches of TD’s denial notices. Bergstrom conceded that his Disability Certificate (“OCF-3”) was not submitted to the TD until October 23, 2020, and therefore agreed that there was no entitlement to NEBs prior to this date.
Bergstrom submitted that both of TD’s denial notices, dated October 28, 2020 and December 17, 2021 were non-compliant with s. 36(4)(b) of the Schedule. The Tribunal firstly agreed that the October 28, 2020 correspondence “did not provide medical and any other reasons why the respondent did not believe the applicant was entitled to the NEBs, as required by s. 36(4)(b). In its stated reasons, the respondent did not specify that it did not believe that the applicant was entitled to NEBs. I agree with the applicant’s submissions that the letter instead stated that the respondent was “unable to determine if” the applicant was eligible for NEBs. It further requested the applicant’s attendance at s. 44 insurer’s examinations to “assist us in determining your eligibility”. As such, the October 28, 2020 denial did not make a determination on entitlement as required by s. 36(4)(b).”
TD argued that the decisions cited by Bergstrom are irrelevant, as they were decided prior to the release of the Court of Appeal decision Varriano v. Allstate . In Varriano, the Court of Appeal found that medical reasons are not required in conjunction with the termination of a specified benefit if a non-medical ground was the reason for the determination. The Tribunal was not persuaded that the reasoning in Varriano was applicable in this case. For the matter at hand, it is Bergstrom’s position that TD’s denial notice did not make any determination on entitlement, not that a non-medical reason for the denial had been provided. The Tribunal agreed with Bergstrom, and was “persuaded by his cited decisions, namely S.V. v Aviva Insurance Canada and Wu v Aviva, which found that the insurer is required to provide the reasons why it was denying the benefit. In the present matter, the respondent did not actually state that it was denying the benefit, but rather, clearly stated that it had not yet made the determination as to entitlement. In my view, the October 28, 2020 letter was not compliant with s. 36(4)(b) of the Schedule.”
The Tribunal then further found that TD’s subsequent letter dated December 17, 2021 was also non-compliant with s. 36(4)(b) of the Schedule. The Tribunal agreed with Bergstrom that a “medical and any other reason for the denial was not specified. Rather, the respondent simply stated that it was enclosing the s. 44 reports of its assessors and that “You are encouraged to review and discuss this report with your treating health practitioner”. No details as to the examiners’ findings were specified. I agree with the applicant that simply referencing a s. 44 report and suggesting that the applicant discuss it with his practitioner does not provide an unsophisticated party with an understanding as to why his claim was being denied, as specified in 16-003316/AABS v. Peel Mutual”.
Therefore, given that the respondent did not provide a s. 36(4) compliant notice, pursuant to s. 36(6) of the Schedule, NEBs are payable from October 23, 2020, to 104 weeks post-accident, being December 30, 2021.
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