Print
 

 Volume. 5 Issue. 39- September 1, 2021



Does the insurer have to pay disability benefits when it fails to comply with notice provisions? It depends… You will need to have your SABS handy to follow the maze of application and notice requirements imposed on both the Applicant and Insurer in order to follow the Tribunal’s conclusion in this week’s cases.

We report on two cases where a failure to frame requests under s.33 in response to a claim for specified benefits impacts the insurer’s s.36(4) obligations, which sets out the following:

In response to an application for specified benefits, the insurer shall either, within 10 business days:

a) pay the specified benefits
b) provide a notice explaining the denial, and request an IE, if                  required; or
c) provide a s.33 request.

Advance your best case with for and against information. The investment is worth it! Submit your OAR request through Live Chat!

 



No Ultimate Cost for Respondent’s Non Compliance in Two Matters

Non Compliance Trumped by Non Compliance – Injured in a September 2015 accident, the Applicant in A.H. v Aviva (19-0046390), sought IRB from October 2016 to date and ongoing, contending that his disability began coincidently when his employment ended. The Tribunal ultimately found that the work stoppage was unrelated to any alleged accident related impairments, further noting that there was evidence of his working throughout much of 2017. In addition, A.H. had not tendered his initial OCF-3 until May 24, 2017, which the Tribunal fixed as the effective start date of any purported entitlement. Following receipt of the OCF-3, the Respondent notified A.H. of his obligation to complete an OCF-10 Election, as there was potential entitlement to both IRB and NEB.

Offering an alternative argument, A.H. indicated there to have been a failure on the Respondent’s part to comply with s.36(4) of the Schedule, until there was an IE requested October 30, 2017. Therefore, as per s.36(6), the Respondent was obliged to pay IRB from May 24 through to October 30. The Respondent countered that the issue of its noncompliance was rendered moot by the fact of A.H. having worked throughout the period in question. (While not explicitly set out, it appears that the noncompliance would be based upon the fact of the OCF10 request not having been framed under s.33, as per s.36(4)(c)). However, the Tribunal did not accept this argument as “Section 36(6) is a clear shall-pay provision.”

Despite this, the Tribunal found that any payment obligations under s.36 were never triggered, as A.H.’s failure to comply with the s.33 request for an Election results in his application for specified benefits being rendered incomplete. Therefore, there was no quantum payable, as A.H. himself was in non-compliance with the Schedule.

Ultimately No Price for Non-Compliance – Injured in a July 2018 accident, the Applicant in Parameswaralingam v Echelon (19-005907), was found not to have been entitled to IRB until April 25, 2019. This was the date the Tribunal found that Parameswaralingam had properly submitted a December 2018 OCF-3 and a February 2019 OCF-1.

Upon confirming receipt of this completed application, the Respondent sent an April 26, 2019 correspondence indicating in part: “Based on the information provided you qualify / don’t qualify for the following benefits: INCOME REPLACEMENT BENEFITS….” In addition, a number of documents were requested in order to establish the quantum of IRB payable.

The Tribunal found that the Respondent had breached its s.36(4) requirements, having failed to either pay IRB, or indicate reasons why they believed there not to be entitlement, provide notice under s.44 for an IE, or request further information under s.33 of the Schedule.

There were subsequent requests for information on September 9, 2019, and again on February 5, 2020, however again they were found not to comply with s.36(4), including the fact that there was no reference to s.33. It was not until February 24, 2020 that the Respondent for the first time specifically requested documentation under s.33. Therefore, this was the date upon which the Respondent complied with s.36(4), and as a result IRB was payable from April 25, 2019 through to February 24, 2020. Beyond this date, the Tribunal found that Parameswaralingam had failed to establish ongoing entitlement.

Despite this finding, ultimately the Tribunal found that Parameswaralingam had failed to provide sufficient particulars regarding his pre- and post-accident income to establish the quantum. Whereas he had provided an OCF-2 confirming his last four weeks earnings, the CRA confirmed that Parameswaralingam failed to file a 2018 tax return. Therefore, Parameswaralingam was precluded from relying upon same, as “an OCF-2 does not trump the requirement of s. 4(5).”

While Parameswaralingam had filed with the CRA for taxation year 2017, there was no way to determine how much, if any, of the reported income was within the required 52 weeks pre-accident. Further, T4s for taxation year 2019 again failed to allow for an understanding as to how much if any was earned during the non-compliance period in 2019, therefore post-accident income could not be determined. As a result, the Tribunal was unable to calculate IRB payable during the period of noncompliance.



Related LAT inFORMER issues:

CRA Filings Help and Hinder



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

April 30, 2025: Tribunal Confirms Four Class 4 Marked Impairments

CAT

April 28, 2025: MIG Not Conceded Despite Approved CAT Assessments

MIG

April 23, 2025: Court Reverses Tribunal’s Unreasonable Adjournment Refusal

Adjournment, CAT, Divisional Court

April 21, 2025: MIG Escape on Fractured Tooth 15 Months Later

MIG

April 16, 2025: Deficient Notice Renders NEB Payable

NEB

April 14, 2025: MIG Valid Medical Reason

MIG

April 9, 2025: Bus Travelling Over Elevated Manhole Cover Satisfies “Collision”

Definition Accident

April 7, 2025: Four OCF 18’s Payable Despite MIG Hold

MIG

March 26, 2025: Post 104 IRB Ongoing for Non-CAT

CAT, IRB

March 24, 2025: 30% Award for Failure to Review CNRs Overturned on Reconsideration

MIG

March 19, 2025: Yes to CAT, No to Post 104 IRB

CAT, IRB

March 17, 2025: Imaging Report Alone Insufficient to Establish Causation

MIG

March 12, 2025: Tribunal Rules Again on Matter Referred Back by the Court

Definition Accident, Divisional Court

March 10, 2025: Res Judicata Waived on New Evidence

MIG

March 5, 2025: No Criterion 8 CAT as Physical Pain the Limiting Factor

CAT

March 3, 2025: Cause of Shoulder Tear Degenerative or MVA Related?

MIG

February 26, 2025: NEB Payable to 104 Week Mark Due to Technical Breaches

NEB

February 24, 2025: Doctor Not Required to Provide Diagnosis

MIG

February 19, 2025: Court Sets Aside Tribunal S.32 Notice Decision

Breaking News, Div Court, Limitation Period

February 12, 2025: Post 104 IRB Despite Employment & No CAT As Only Two Marked Impairments

CAT, IRB

February 10, 2025: GP Evidence Preferred over IE Regarding Concussion

MIG

February 5, 2025: No Election Required Despite Endorsement of IRB & NEB

Procedure, SABS

January 27, 2025: CNR’s + Imaging Determinative of Complete Shoulder Tear

MIG

January 22, 2025: Court of Appeal Upholds Divisional Court Decision

Divisional Court, NEB, Reconsideration

January 20, 2025: GP’s Diagnosis of “Head Injury” Prevails

MIG

January 15, 2025: Tribunal Accepts Neither Expert in Awarding Pre But Not Post 104 IRB

IRB

January 13, 2025: A Brain Contusion is Not Enough for a Concussion Diagnosis

MIG

January 9, 2025: Court Awards $69K in Costs for Apparent Miscarriage of Justice

Divisional Court,Costs

January 6, 2025: Corroborative Evidence Not Necessarily Required in Psych Diagnoses

MIG

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG