Volume. 6 Issue. 43 – November 2, 2022
The Tribunal continues to wrestle with what constitutes a “complete” OCF-3, although in the two cases featured we seem at least to have arrived at somewhat of a consensus. This contrasts with an earlier decision in which the Tribunal reiterated that “a completed” disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for NEB”.
In both cases this week, there was an initial OCF-3 that did not support entitlement to a specified benefit, although, submitted within the 104 weeks. with a subsequent “qualifying” OCF-3 being submitted more than 104 weeks post MVA.
‘Late OCF-3 Not Necessarily Fatal to IRB Claim’ considers a motion to dismiss an application as statute barred, wherein an OCF-3 supporting IRB entitlement was not submitted until 129 weeks post MVA.
Conversely, ‘Late OCF-3 Fatal to NEB Claim” in Schedule‘ considers whether a late “qualifying” OCF-3 would preclude in its entirety entitlement to NEB.
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Able to Proceed Despite Late “Qualifying” OCF-3
Late OCF-3 Not Necessarily Fatal to IRB Claim – In 20-011497 v TD Insurance, TD brought a motion seeking to determine whether the Applicant Ruchlemer was precluded from proceeding with the application for IRB because she did not provide a disability certificate (‘OCF-3’) that supports her claim for IRB within 104-weeks of the subject accident?
Injured in a September 2015 accident, Ruchlemer did not provide a completed OCF-3 supporting IRB until March 13, 2018, being 129 weeks post accident. However, the Tribunal found that Ruchlemer had much earlier provided a completed OCF-3 dated October 6, 2015, although same neither supported entitlement to IRB nor NEB. TD had in fact responded to this OCF-3 October 22, 2015, informing Ruchlemer that she was not entitled to IRB or NEB.
Counsel for TD was queried at the hearing regarding the earlier OCF-3, responding that while a completed OCF-3 was provided within 104 weeks, the matter was nonetheless statute barred as Ruchlemer failed to submit a completed OCF-3 claiming an IRB until approximately 129 weeks after the accident..
The Tribunal though found that s.36 does not make any reference to whether or not the applicant must meet the substantial inability test. The fact of the initial OCF-3 not supporting entitlement to IRB “is something that can be addressed at the substantive issue hearing. Preliminary issues are very technical in nature. The question here is whether or not she submitted the OCF-3 within the 104-week mark. Based on the evidence before, I find that the applicant did comply with the requirements”.
OCF-3 Endorsing NEB Too Late to Qualify
Late OCF-3 Fatal to NEB Claim – Injured in a December 2017 accident, the Applicant Valentine, in 20-008673 v AIG Insurance, sought entitlement to NEB. Specifically at issue was whether Valentine was barred from proceeding with her claim for a NEB under sections 12(3)(c) and 36(3) for failing to submit a completed OCF-3 within 104 weeks of the accident.
An initial OCF-3 submitted August 1, 2019, did not support entitlement to NEB, whereas a subsequent OCF-3 submitted April 22, 2020 did support entitlement, well beyond the required 104 weeks post MVA. AIG submitted that a “completed” OCF-3 requires entitlement to be confirmed, which the Tribunal agreed with Valentine not to be the case.
Ultimately however, the Tribunal found that Valentine had not submitted a “qualifying” OCF-3 until after April 2020, significantly after her period of entitlement to NEB had ended. The initial OCF-3, submitted in August 2019, very near the end of the eligibility period was found to have “potentially and consequently limiting (Valentine) from making a valid, timely claim for a NEB.” Submitting the second OCF-3 well after the initial 104 weeks, resulted in Valentine not being entitled to NEB during the entire eligibility period.
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