Volume. 6 Issue. 31 – August 10, 2022
In this week’s first case, the Tribunal considers whether an insurer is able to deduct LTD from ongoing IRB, despite the carrier having denied entitlement to same.
Next up, the Tribunal reverses an earlier decision that had awarded two years of NEB based upon procedural non-compliance, finding for a fact that procedural obligations were not triggered against the insurer, and that it was the Applicant who failed to comply. While the original decision confirmed that the Applicant had complied with a s.33 request, the Tribunal now confirmed there to be no evidence that any of the requested documents had been provided.
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Insurer Able to Deduct LTD Not Received From IRB
LTD Not Received Deductible from IRB – In 20-007407 v Allstate, the Applicant McBeth contended that Allstate was not entitled to deduct LTD benefits from his IRB entitlement, as the LTD carrier refused to honour his claim.
Allstate however argued that McBeth’s LTD claim was denied solely upon technical/procedural grounds, and that given same he ought to be deemed as never having applied for the LTD benefits. This is to be understood in context of the Schedule allowing for the deduction of “other income replacement assistance” that includes benefits available “but is not being received by the person and for which the person has not made an application.”
The carrier had denied the LTD claim given that McBeth did not make an application until September 25, 2019, whereas the application was due no later than June 22, 2019, being 90 days after the elimination period or waiting period of four months.
Under The circumstances, the Tribunal found that McBeth “must be diligent in pursuing a claim under a collateral benefits LTD policy. If the applicant fails to apply for collateral benefits, or if the applicant misses the limitation period within which to apply for the collateral benefit, in my view, that is akin to failing to apply for the benefit at all as required by the Schedule and the respondent insurer is entitled to deduct the LTD as if the applicant is receiving the benefit.”
Concluding, Allstate “is entitled to a deduction of the LTD benefits which the applicant otherwise may be entitled, and a deduction or a deemed offset should be applied in relation to the amount of LTD benefits the applicant could have received had he exercised his entitlement to them in accordance with the collateral benefits policy.”
Tribunal Reverses Decision Regarding Two Years NEB Entitlement
Two NEB Entitlement Reversed – In somewhat of a curious set of circumstances, the Tribunal reversed course upon reconsideration of 19-010985 v Aviva, wherein they originally found that the Applicant Mahhamoud had complied with Aviva’s multiple requests under s.33 of the Schedule. Subsequent to which Aviva advised of their position on entitlement to NEB, requesting an IE being. However, the Tribunal found Aviva’s correspondence “failed to meet the requirements of s. 36(4)(b), and, ultimately, held that the applicant was entitled to NEBs due to the respondent’s breach of its obligations under the Schedule.” Entitlement was awarded for the entirety of the available 104 weeks, from February 5, 2018 through to December 11, 2019.
The Tribunal however now agreed with Aviva “that I erred in fact by incorrectly finding that the applicant had complied with the s. 33 request once she had provided her family physician CNRs to the respondent on December 18, 2018. Indeed, there was no evidence before me that she provided any of the additional information requested.” The Tribunal opined that this was “a reasonable error to make given the contents of the respondent’s December 28, 2018”, same being the aforementioned non-compliant letter regarding NEB. As a result of this error of fact, the Tribunal had accepted that s.36(5) was thusly triggered, resulting in Mahhamoud being awarded NEB through to the 104 week mark.
Concluding, as there was no evidence of compliance with Aviva’s s.33 request, neither s.36(5) or 36(6) were triggered. Further, it had been the position of Mahhamoud that he was entitled to NEB solely based upon procedural considerations. Having failed to provide any evidence or submissions at first instance regarding substantive entitlement, Mahhamoud was therefore not entitled to NEB on the merits either.
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