Volume. 6 Issue. 42 – October 26, 2022

In ‘NEB Entitlement Commences Prior to Age 18’ the Tribunal confirms that the eligibility for NEB for minors is still to be tested within the first 104 weeks post accident, with payment only being delayed until attaining the age of 18.

In ‘Tribunal Imposes Penalty Not “Explicit” in Schedule‘ the Tribunal determines that while a penalty is not, in their words “explicitly” stated, nonetheless the consequences for the insurer not having provided a copy of the IE to the Applicant were “clear”. The Tribunal also found numerous issues with the Respondent’s handling practices, leading to a 25% award being levied.

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Minor Potentially Entitled to NEB, However No Payment Until Age 18

NEB Entitlement Commences Prior to Age 18 – In 20-011681 v Dominion, the Tribunal considers the implications regarding both entitlement to and payment of Non -Earner Benefits (NEB) for the Applicant Zhang, 15 years old on the date of loss. It was Dominion’s contention that as Zhang turned 18 two years and 3 months after the date of loss, more than 104 weeks after same, she was accordingly not eligible for NEB within the 104 week post accident time period. Therefore, failing to satisfy the requirement to demonstrate a “complete inability” within the required 104 weeks post accident.

Zhang countered that this interpretation was not correct, considering the consumer protection objective of insurance law, and that s.12(3)(b) simply requires payment of the 104 week post accident period upon Zhang attaining 18 years of age. The applicable sections read in part “The insurer is not required to pay a non-earner benefit…before the insured person is 18 years of age (or) for more than 104 weeks after the accident…”.

The Tribunal ultimately accepted Zhang’s interpretation, noting that the legislation confirms one criterion of entitlement being that one is “enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident”. There is no dispute here that the applicant was a high school student, who went on to Grade 11 studies the fall of 2018. As such, she meets the eligibility requirement to apply for NEB.” Further, given that s.12(3)(b) then indicates no payment being required before attaining age 18, when “Read in conjunction with the preceding provision in section 12(1)2i regarding being in school as a condition that the insured person must meet to qualify for a NEB, and considering the intent of the Schedule, this section refers to when, meaning at what age, the benefit is payable.”

Therefore, NEB is payable once Zhang turned 18, not before that time. The Schedule “does not say that the individual must be 18 years old at the time of the accident to be eligible to apply for non-earner benefits.” Accordingly, Zhang “meets, at the very least, the threshold requirement to apply for NEB.” The test then is whether Zhang suffered a complete inability within 104 weeks of the accident. Given that she was injured in a June 2018 accident, the period to be considered ran from July 2018 through to June 2020. The Tribunal found that within this period, Zhang had not established the requisite complete inability. The evidence relied upon by Zhang did not provide sufficient detail/information regarding pre vs. post MVA ADLs.

One aspect, though that was made clear, was that “her schoolwork and good grades were critical to both the applicant and to her parents. My read of the evidence is that the applicant was fully engaged in that regard, as evidenced by the fact that she was motivated to improve her grade(s), specifically in mathematics, which admittedly she found difficult, by taking a summer program; and the fact that she was able to complete all levels of her senior high school years studies, on time and with grades that garnered her admission to the university program of her choice. Therefore, there was no evidence that the injuries sustained “continuously prevented her from engaging in substantially all the activities in which she ordinarily engaged before the accident.”

Tribunal Imposes Penalty Not “Explicit” in Schedule

Tribunal Imposes Penalty Not “Explicit” in Schedule – In 20-004601 v Travelers, Travelers failed to provide a copy of the IE relied upon for denial, to the Applicant Stewart. The Tribunal ultimately agreed with Stewart that if Travelers “wished to deny the OCF-18 “in part” on the basis of the IE, it had an obligation to provide such to the applicant based on sections 38(13) and (14) of the Schedule.”

Taking the matter one step further, the Tribunal then found that while “these sections do not explicitly state consequences for an insurer’s failure to comply with this requirement, when read in conjunction with section 38(11) of the Schedule, it is clear that the consequence of this failure is the obligation for the respondent to be required to pay for the disputed treatment.” The Tribunal indicated that Travelers’ “failure to provide the IE within the time prescribed by the Schedule is equivalent to an insufficient denial.” Given the consumer protection nature of the Schedule, “it would be unfair for a respondent to deny an OCF-18 on the basis of an IE without providing such to an applicant for their review; applicants are entitled to understand the reasons they are being denied benefits, and in this matter, the respondent failed to do so.”

The Tribunal further found there to have been “several irregularities when the respondent responded and continued to assess the applicant’s injuries with respect to the disputed OCF-18s.” This included the fact that Travelers only chose to approve one OCF-18 after Stewart had made her written submissions, in excess of three years after the OCF 18 was submitted. Factored in as well were the amounts outstanding as well as Stewart’s age. Ultimately, an award of 25% was levied against Travelers for all denials in dispute, having “failed to respond reasonably when denying the applicant’s disputed benefits.”

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