N.H. v. Motor Vehicle Accident Claims Fund (19-000953)

The claimant was involved in a 1994 accident. She received accident benefits under the 1994 SABS. One of the benefits under the 1994 SABS was the loss of earning capacity benefits (LECBs), which was payable to persons who were entitled to IRBs for more than two years. In 2006, the 1994 SABS was amended to remove entitlement to LECBs unless three conditions were met as of March 1, 2006: (i) the insurer had refused to pay IRBs or other weekly benefits; (ii) the insurer had not made an LECBs offer; and (iii) a specified dispute resolution process had been commenced. Persons who met these conditions prior to March 1, 2006 were entitled to claim and receive LECBs after the transition date; persons who did not meet these conditions were not. The claimant argued that despite not meeting the three conditions, she was still entitled to LECBs because the insurer had never formally denied IRBs, and based on the argument that she had a vested right to claim LECBs notwithstanding the 2006 amendment. Adjudicator Neilson disagreed with the claimant and held that the 2006 amendments barred her claim for LECBs. Adjudicator Neilson accepted that the insurer may not have denied IRBs, but that did not prevent the claimant from applying for LECBs before 2006. The insurer stopped paying IRBs in 1994, and the claimant could have applied for mediation, arbitration, or the Courts at any time after payment ceased. Adjudicator Neilson rejected the argument that the claimant had a vested right to receive LECBs. The 2006 amendments were sufficiently particular to oust the presumption against retroactivity / interference with vested rights, and the claimant’s right to claim or receive LECBs was removed by the 2006 amendments.