Volume. 6 Issue. 48 – December 14, 2022
This week the Tribunal considers eligibility for claiming NEB for an applicant employed on the date of loss. In the second case, the Tribunal confirms that the “protective” nature of the Schedule is intended for both parties..
OARs provide 3 LAT Decisions each for and against for your fact situation, to inFORM your position, compare your evidence and assess your risk.
IRB Eligibility Precludes NEB Claim
IRB Eligibility Precludes NEB Claim – In 20-011733 v Aviva, the Applicant Ozor sought entitlement to NEB, whereas Aviva contended that Ozor in fact was disqualified from entitlement. Aviva relied upon the fact that the Disability Certificate (OCF-3) endorsed entitlement to IRB, which they argued precluded entitlement to NEB. The Tribunal referenced s.12 of the Schedule, specifically that in order to claim NEB, one must satisfy the precondition that to be eligible, the insured “does not qualify for an income replacement benefit.” At issue therefore was whether Ozor qualified for IRB, rendering her accordingly unable to claim NEB. The Tribunal concluded “In short, the answer is yes”.
The Tribunal found it “unhelpful”, that Ozor’s submissions largely focus on her allegations that she suffers a complete inability to carry on a normal life, whereas “This preliminary issue focuses on the essential first step in the NEB claim process, namely, is C.O. precluded from making a claim for the benefit in the first place.” The OCF-3 in question confirmed that Ozor had worked at least 26 weeks of the previous 52 and endorsed that Ozor “is substantially unable to perform the essential tasks of her employment”. Therefore, eligibility for IRB precludes Ozor from advancing a claim for NEB, for which she is as a result not eligible.
Consumer Protection a Two Way Street
Consumer Protection Cuts Both Ways – In 19-010239 v Economical, the Applicant Fard sought reconsideration of an earlier decision whereby she was precluded from proceeding with her claim for IRB based upon non-compliance regarding attendance at s.44 IEs. Ultimately unsuccessful, the Tribunal found that “What would have been helpful for her is if she had attended the subject IEs, particularly since the pre-104 and post-104 IRB tests are different…(and) there is no remedy for non-compliance in attending IEs, except attendance at IEs.” It was further noted that Fard “Touts the “consumer protection” nature of the Schedule”, however the Tribunal confirmed that this in fact cuts both ways.
The Schedule “Also provides the right of insurers to be able to make informed determinations on claims for benefits by requesting an insured person attend at an IE.” Further, “each of the insured and the insurer have corresponding obligations to each other.” The Schedule “Is also consumer “direction and instruction”, and where the consumer has failed to follow the direction and instruction of the Schedule, an insurer has a right to seek out the appropriate remedy to protect its interests with a claim for benefits. The protective nature of the Schedule is for both parties, where a party has failed to comply as required.”
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!