Wilmot v. Aviva Insurance Company of Canada (21-002048)

The claimant applied for accident benefits arising out of an accident. There was conflicting information regarding his employment and education. In his OCF-1 , the claimant indicated he was in school, and employed. However, his OCF-3 noted that he had not worked at least 26 of the previous 52 weeks. His OCF-3 also indicated that he was substantially unable to complete the tasks of his employment, and suffered a complete inability to carry on a normal life. In responding to priority issues, the claimant also submitted a statement which indicated that he was a full-time student and was not working, but earned income through “side-jobs” of painting. The insurer advised the claimant that he may be eligible for IRBs, and requested the completion of an OCF-2 and OCF-10. On several different occasions throughout the next year, the insurer made repeated requests for more information to determine the claimant’s eligibility for IRBs or NEBs, and for the claimant to submit an OCF-10. The claimant’s lawyer replied via e-mail that “the benefit of choice would be NEB”, and “no IRB” because of the claimant was presently working as a forklift operator. The insurer continued to request an OCF-10. Adjudicator Pahuta held that the claimant was barred from proceeding with his claim for NEB as a result of his failure to submit his OCF-10. Adjudicator Pahuta found that there was sufficient ambiguity as to whether the claimant was entitled to IRBs or NEBs, and thus the insurer’s request for an OCF-10 was reasonable and valid. The claimant was not automatically disentitled to an IRB just because he had began working.

Alkhazov v. Aviva Insurance Company of Canada (21-004825)

The insurer brought a preliminary motion to address whether the claimant was barred from proceeding with his claim for NEBs as he failed to submit an OCF-10 form electing benefits. The claimant was injured in an automobile accident on April 18, 2019, and applied for accident benefits (OCF-1) on April 23, 2019. In his OCF-1, the claimant indicated that he had returned to work on April 19, 2019. The claimant subsequently submitted an OCF-3 on June 4, 2019, indicating that he was substantially unable to perform the essential tasks of his employment. On June 10, 2019, the insurer denied both IRB and NEBs, and asked the applicant to submit an OCF-10 if he wished to pursue an IRB or NEB. On June 14, 2019, the insurer sent follow-up correspondence requesting the claimant to submit an OCF-10. The claimant never submitted an OCF-10. As such, Adjudicator Makhamra held that the claimant was barred from proceeding with his claim, as the claimant was required to, and failed to, submit an OCF-10.

Ganea v. Travelers Insurance (19-012901)

The claimant and the insurer each sought a preliminary issue to answer the following question: was the insurer’s request for an OCF-10 and an IE prior to starting IRB payment in accordance with s. 36 of the SABS? Adjudicator Gosio agreed with the insurer that its request for an OCF-10 and an IE prior to paying an IRB complied with s. 36. Adjudicator Gosio noted that the claimant submitted an OCF-1 and two OCF-3s which indicated that she met the disability test for NEBs and IRBs. Adjudicator Gosio noted that it was proper for the insurer to request an election pursuant to s. 35 and that the language of s. 35 is clear and mandatory. Adjudicator Gosio held that by the claimant not making an election, the insurer could not identify the nature of the claim or the benefits sought. Adjudicator Gosio held that the completed OCF-10 was required for the application for accident benefits to be considered “complete”. As for the IEs, Adjudicator Gosio also agreed with the insurer that its request for IEs complied with s. 36 because, as the claimant’s application was incomplete for failing to provide the OCF-10, the insurer was under no obligation to initiate an IRB payment prior to arranging IEs.

A.H. v. Aviva Insurance Canada (19-004639)

The claimant applied to the LAT seeking entitlement to IRBs and medical benefits. Vice-Chair McGee found that the claimant failed to meet the substantive test for IRBs. The claimant submitted that under s. 36 of the SABS the insurer was required to pay IRBs for a five-month period because the insurer failed to request insurer examinations within 10 days of receipt of the claimant’s OCF-3. Vice-Chair McGee found that the insurer was not required to pay IRBs during this period because the insurer requested an Election of Benefits (OCF-10) within 10 days of receipt of the OCF-3, and the claimant failed to submit a completed OCF-10. Vice-Chair McGee held that the s. 35 requirement to elect a benefit is mandatory and unambiguous. Failure to complete this step renders an application for a specified benefit incomplete. The claimant’s OCF-2 did not eliminate the ambiguity in the OCF-3, which supported IRBs and NEBs, and did not stand in the place of an OCF-10 election. The applicant’s failure to elect a specified benefit meant that the insurer’s obligations under s. 36 were never triggered. The application was dismissed.

Nelson v. Travelers Insurance Company of Canada (19-012673)

The claimant sought entitlement to ongoing IRBs, removal from the MIG, and four treatment plans for physiotherapy and two assessments. Vice Chair McGee dismissed the claims. She held that the claimant failed to prove that she suffered from a non-minor injury. Her alleged chronic pain was not serious enough to qualify as non-minor. The claimant did not use medications, she returned to college within a few months of the accident, and she was largely independent with personal tasks and chores. The claimant also did not meet the IRB disability test. She returned to college shortly after the accident after quitting her job so that she could upgrade her credentials. She planned on returning to college before the accident occurred. The claimant did not look for a job while in college because she did not believe she could handle both a job and her studies. After graduating from college, the claimant’s inability to find employment was due to COVID rather than any physical impairment. Finally, Vice Chair McGee held that even if the claimant met the IRB disability test, she would not be entitled to claim IRBs until her completed election was submitted, as the OCF-3 supported both IRB and NEB.

Boateng v. Allstate Insurance Company of Canada (19-014193)

A preliminary issues hearing was held to address whether the claimant was barred from proceeding with his claim for NEBs as he failed to submit an OCF-10 electing NEBs. The claimant submitted an OCF-3 supporting IRBs and NEBs. The insurer requested the claimant submit a completed OCF-10 election of benefits. The claimant failed to submit an OCF-10. Vice Chair McGee found that when an application indicates possible entitlement to more than one specified benefit, an OCF-10 is required to complete the application for accident benefits. Vice Chair McGee found that as the claimant had not properly applied for NEBs, as a result of not submitting an OCF-10, the insurer had not had an opportunity to properly adjust or deny the claim, so there was no dispute to be adjudicated by the LAT. The claimant was barred from proceeding with his claim for NEBs as no dispute over the benefit properly existed.

Jones v. The Co-operators (19-013271)

The claimant applied to the LAT seeking entitlement to IRBs and medical benefits outside of the MIG. At the outset of the hearing, the claimant sought to change his claim for IRBs to a claim for NEBs. Claimant’s current counsel advised the LAT that he had not received the claimant’s file from a former counsel, and he had not been aware that the claimant had submitted an OCF-10 electing NEBs until he received the insurer’s hearing brief. The claimant relied on the Court of Appeal decision in Galdamez v. Allstate (2012 ONCA 508) for the proposition that an insured may qualify for IRBs but claim NEBs. Adjudicator Flude found the Galdamez decision to be distinguishable as it dealt with the previous version of the SABS, which did not provide for an irrevocable election of benefits (OCF-10). Adjudicator Flude denied the claimant the right to amend his application to advance a claim for NEBs, on the basis that it was barred because he qualified for IRBs (pursuant to s. 12 of the SABS) and because his claim for NEBs was brought beyond the two-year limitation period set out in section 56 of the SABS. Adjudicator Flude declined to extend the time for bringing the claim for NEBs under section 7 of the LAT Act, largely on the basis that the claim for NEBs was meritless. Adjudicator Flude found that the claimant was within the MIG and he was not entitled to IRBs. Adjudicator Flude also found that since the claimant did not report his pre-accident income to the CRA, the quantum of IRBs would have been zero if he satisfied the test for entitlement.

K.A. v. Intact Insurance Company (19-004459)

The claimant was in an accident in May 2017. He submitted an Election choosing NEBs in July 2018. He submitted an OCF3 supporting NEBs in September 2019, more than 104 weeks after the accident. The insurer denied entitlement to NEBs based on the failure to provide an OCF3 within 104 weeks of the accident. The claimant argued that he should be excused from submitting a late OCF3 because he was self-represented at the time. Adjudicator Boyce agreed with the insurer that section 36 provided no exceptions to the requirement than an OCF3 must be submitted before payment of NEBs could begin. Because the OCF3 was submitted after the 104 weeks of eligibility, no NEBs would be payable. The claimant’s reason for the late OCF3 was irrelevant.

D.A.S. v. Western Assurance Company (19-010526)

The claimant applied to the LAT for NEBs. The claimant’s OCF3 indicated that she met the tests for IRBs and NEBs. The insurer requested an election pursuant to section 35 of the SABS. The claimant did not return the election and instead applied to the LAT two years later. About six months into the LAT proceedings, the claimant submitted an election for NEBs. The insurer argued that because the election was not submitted prior to the LAT application, there was no dispute between the parties that could be adjudicated. Vice Chair McGee agreed with the insurer and dismissed the claim. She held that the claimant’s failure to submit an election prevented the insurer from property adjusting the claim, and did not give the insurer the opportunity to approve or deny the benefit. Without a denial, there was no dispute for the Tribunal to adjudicate.

G.N.K. v Aviva Insurance Canada (18-006631)

The claimant initially applied for and elected IRBs, but ultimately did not meet the criteria to receive IRBs. He sought to re-elect and receive NEBs. The insurer argued that he was not entitled to make a re-election. Adjudicator Marzinotto agreed with the insurer, and held that the claimant could only re-elect to receive NEBs if he suffered a catastrophic impairment as a result of the accident.