Volume. 9 Issue. 21 – July 2, 2025
IRB + Award Despite Late OCF3
This week the Tribunal considers IRB entitlement in a scenario whereby the OCF3 was first produced well over two years post MVA. Despite failing to apply for an IRB within the 104-week period of eligibility under s. 6(1) of the Schedule. Not only was the Applicant entitled to IRB, she was further entitled to a 35% award given the Respondent’s own non-compliance.
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Non Compliance Garners 35% Award – Injured in an October 2020 MVA, the Applicant Leslie sought entitlement to IRB from October 23, 2020 to date and ongoing, at the rate of $400/week. She also sought entitlement to the balance of three partially approved Treatment Plans, plus an award. In 23-004878 v Western Assurance, Leslie acknowledged that her OCF-3 was not submitted to Western Assurance until March 1, 2023, however she argues that it is unreasonable to deny her entitlement to an IRB based on the late submission of her OCF-3 because she was self-represented when she first applied for accident benefits, and she was experiencing difficulties due to her injuries.
Issues With Handling of IRB Claim?
Leslie further contended that Western Assurance accepted her late submitted OCF-3 on April 21, 2023, when it acknowledged receipt of her OCF-3 and requested that she produce various documents pursuant to s. 33 of the Schedule to determine the quantum of the IRB, and that as a result they were estopped from insisting on strict compliance with the Schedule. In addition, once Western Assurance accepted priority of her claim on November 10, 2021, it was obligated to review her file and to ensure that her file had been handled properly. This would, in her view, include an obligation to ensure that an application package, including an OCF-3 form, had been provided in accordance with s. 32(2) of the Schedule, as well as requesting or taking reasonable steps to obtain a completed OCF-3. Given this failure, it was contended that Western Assurance should be estopped from relying on its own omission years later. Finally, while Leslie’s counsel inquired on September 20, 2022, whether there was an OCF-3 on file and whether she was in receipt of an IRB, Western Assurance did not respond to this inquiry.
Respondent’s Counter
Western Assurance took the position that Leslie was not eligible to an IRB because she did not establish entitlement to an IRB within the first 104-weeks following the accident, i.e. by October 13, 2022. Accordingly, it has no obligation to pay an IRB until both the OCF-1 and OCF-3 has been submitted and given that the applicant did not submit an OCF-3 until March 1, 2023, she is not eligible to receive an IRB.
Tribunal’s Ruling No IRB Entitlement – s.36(2) & (3) & s.6(2)(b)
The Tribunal found that “the evidence supports a finding that the applicant did not submit an OCF-3 until nearly 124 weeks after the accident. Pursuant to s. 36(2) and 36(3) of the Schedule, the applicant is not entitled to an IRB for any period before her completed OCF-3 was submitted. Further, to apply for an IRB, the applicant must satisfy that she meets the eligibility requirements under s. 5 of the Schedule, and she must apply for an IRB within the 104-week period of eligibility under s. 6(1) of the Schedule. As the applicant did not apply for an IRB within the period of eligibility, i.e. by October 13, 2022, the respondent is not required to pay an IRB under s. 6(2)(b) of the Schedule.”
While Leslie relied upon the Tribunal in K.A. v. Intact, it was noted that this decision was not helpful to her, as the Tribunal had found that “the fact the applicant was self-represented for the first year and a half of his claim does not excuse his failure to submit the completed OCF-3 thereafter or until 121 weeks after his accident, which is fatal to his claim.” Further, while Western Assurance could not confirm that the original insurer had provided Leslie with an OCF3, “the Schedule provides no consequence for an insurer’s non-compliance with s. 32(2) of the Schedule, and the fact that the respondent did not provide the applicant with an OCF-3 form has no impact on the applicability of s. 36(3) of the Schedule.”
IRB Entitlement Confirmed as per s. 36(4) or 36(5)
Despite the foregoing, the Tribunal found that Leslie was entitled to receive an IRB for the period of March 1, 2023, to November 2, 2023. Once Western Assurance was in receipt of both the OCF-1 and OCF-3, pursuant to s. 36(6) of the Schedule, it was obligated to give Leslie notice per s. 36(4) or 36(5) within 10 business days which would have been later than March 15, 2023. However, Western Assurance did not acknowledge and respond to the OCF-3 until April 21, 2023, which is when it requested that Leslie provide various documents to calculate the quantum of the IRB.
Further, “based on the evidentiary record, the respondent did not give notice under s. 36(4)(b) of the Schedule to the applicant explaining the medical and any other reasons why it did not believe she was entitled to an IRB until November 2, 2023. At that time, the respondent advised the applicant that she was not eligible to an IRB as her OCF-3 was not submitted within 104 weeks after the accident, and since she did not establish entitlement to IRB within 104 weeks after the accident, she was precluded from seeking IRB pursuant to ss. 5 and 6 of the Schedule.” Accordingly, Leslie was entitled to an IRB for the period of March 1, 2023, to November 2, 2023, less 70 per cent of the gross employment income earned during the period described.
Medical Benefits
Leslie was not entitled to the balance of an OCF18 for a chronic pain assessment, as the amount sought exceeded the maximum allowable amount of $2000. She was entitled to an additional $141.81 and $87.78 for two psychological OCF18s, as the Tribunal agreed with Leslie that her practitioners would have reasonably required more than the one hour allowed by Western Assurance for the completion of the respective OCF18s. However, she failed to persuade the Tribunal that she was entitled to the hourly rates sought by the psychotherapist, social worker or driving instructor.
Award
The Tribunal found that an award is warranted as it relates to the claim for an IRB, as Western Assurance failed to compensate Leslie in accordance with s. 36(6) of the Schedule, rather maintaining that Leslie was not entitled to any IRB. While the OCF-3 was submitted late, “this does not excuse the respondent’s failure to properly adjust the applicant’s accident benefit claim and to respond to the submission of the OCF-3 within 10 business days, as required by the Schedule. I further find that the respondent acted unreasonably when it waited until November 2, 2023, to advise the applicant that she was not eligible for an IRB because of the late submission of her OCF-3 when it knew that there was no OCF-3 on file and that no specified benefits were being paid to the applicant.” Leslie’s inquiry as to whether there was an OCF3 and whether IRB was being received went unanswered, with no reason provided for this failure to respond.
The Tribunal found that Western Assurance’s “conduct has been excessive, imprudent, stubborn, inflexible, unyielding, and immoderate as it relates to the applicant’s claim for an IRB.” With respect to quantum, “the blameworthiness of the respondent’s conduct, the vulnerability of the applicant, the need for deterrence, and the overall length of the delay are the applicable factors. The respondent provided no reason for maintaining a position that is not supported by the Schedule for nearly two years.” Concluding, the Tribunal found that “award of 35% is appropriate because I have not been directed to any evidence to support a finding that the respondent’s conduct was egregious and that it calls for the maximum amount of the award, and I find that the evidence supports an award higher than the minimal amount given the length of the delay.”
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