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.
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