Volume. 6 Issue. 42 – December 7, 2022

This week the Tribunal considers an IRB claim for an Applicant alleging to have sustained psychological injuries as the direct result of providing care for her spouse who was rendered CAT. The Applicant was found entitled to a portion of the IRB claim presented, despite not having applied for the benefit until 3.5 years post accident.

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Eight Months IRB Awarded Despite Entitlement Established Beyond 104 Weeks

Very Late Application Awarded Eight Months IRB – The Applicant Thompson, in 20-005734 v Aviva, sought entitlement to IRB as a result of sustaining psychological injuries providing care for here then common-law spouse Carter, rendered CAT due to injuries sustained in an October 2015 accident.

Thompson, on a parental leave at the time of the accident, returned to work in February 2016, stopping in April 2019 alleging a psychological breakdown due to caring for Carter. As a result, Thompson made application for IRB in May of 2019, providing an OCF-3 dated May 31, 2019. Aviva provided a response on January 20, 2020, at which time they confirmed entitlement from April 29, 2019 to date and ongoing.

Payments for IRB were made, however they were sent to the wrong address, never to be received by Thompson. In February 2020, Thompson wrote to Aviva indicating no payments had been received, however a response from Aviva was not received. As a result, she filed an application with the Tribunal seeking IRB in April 2020.

Subsequently, in November 2020 Aviva wrote Thompson, now taking the position that she was not entitled to IRBs because her application for IRBs was made more than 104 weeks following the accident. The Tribunal considered Thompson’s IRB claim to consist of two distinct periods, from the May 31, 2019 initiation of the claim through to the January 20, 2020 response by Aviva, then the period following.

Firstly, the Tribunal determined there to be a “statutory entitlement” to IRB from May 31, 2019 to January 20, 2020. This was as a result of Aviva having failed to respond to the application for IRB in accordance with s.36(4) of the Schedule. The Tribunal found that “the procedural provisions in section 36 of the Schedule trump the entitlement requirements provided by section 5(1)(1)”, wherein entitlement must be established within 104 weeks of the accident. Further, “the IRB entitlement provisions in section 5(1)(1) of the Schedule do not apply during the period of statutory entitlement because the Schedule does not require it. A plain reading of section 36(6) causes me to conclude that there is no reference to any entitlement provisions, let alone those outlined in section 5(1)(1).”

The Tribunal then turned its attention to the period following Aviva’s January 2020 response to the IRB application. For this period, “s. 5(1)(1) of the Schedule sets out that IRBs are contingent on an insured person suffering a substantial inability to complete their essential tasks of employment within 104 weeks of the accident.” Section 32(1) of the Schedule requires notice no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. Noting that “as soon as practicable” is not defined, the Tribunal opined same to require a “reasonable delay”, together with a “reasonable excuse”, however for this matter “the Applicant provides neither”.

Thompson “submits that her impairment arose after 104 weeks following the accident, which would disqualify her from the eligibility provisions in section 5(1)(1) of the Schedule. Alternatively, the Applicant’s impairment arose within 104 weeks of the accident, yet she never gave the Respondent notification of an intent to apply for benefits until May 2019, more than three and a half years following the subject accident. In either event, the Applicant would not meet the eligibility requirement for IRBs, as outlined in section 5(1)(1). The Tribunal noted that prior decisions have barred claims where entitlement arose more than 104 weeks post accident, however, has yet to consider “whether the same provisions apply in a situation like the Applicant’s, whereby she sustained psychological injuries subsequent to the subject accident.”

It was further noted that s.3(1) provides coverage for those sustaining psychological injury as a result of an accident involving physical injuries to a family member. However, s.5(1)(1) “specifically anchors entitlement to those whose impairment arises within 104 weeks of the subject accident”, not 104 weeks after, in this case, IRB entitlement initially arose. Therefore, “the Schedule intended to limit IRB claims, including those made by family members who develop psychological injuries like the Applicant, to insured persons whose entitlement arises within 104 weeks of the subject accident and not 104 weeks within the onset of impairment.”

The Tribunal noted that “I would have to redefine the term “accident” if I were to accept the Applicant’s interpretation of the Schedule and extend IRB coverage to her”. Thompson’s “impairment arose out of her relationship to and care for the injured person, not the direct use or operation of a vehicle”. In the alternative, “accident” would need “to refer (to) the instance when the Applicant suffered a psychological breakdown and became unable to complete the essential tasks of her employment, instead of the incident involving the vehicle. I reject this interpretation and thus choose not to redefine accident as suggested.”

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