In C.G. v. Pembridge Insurance Company, 2020 ONLAT 19-010979/AABS, the Licence Appeal Tribunal held that there is a strict time limit to apply for an income replacement benefit (“IRB”).
The accident in question occurred on October 31, 2016. The applicant applied for accident benefits on November 8, 2016. On December 1, 2016, the insurer acknowledged receipt of the application and indicated that the applicant may be entitled to an IRB.
The insurer requested the applicant to submit a fully completed Disability Certificate (OCF-3) to determine eligibility and entitlement to the IRB.
On August 22, 2019 (2 years and 10 months post-accident), the insurer received a Disability Certificate which indicated that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment.
The insurer relied on section 36 of the Statutory Accident Benefits Schedule, which requires an insured to submit a completed Disability Certificate within two years of an accident in respect of certain benefits, including an IRB.
The insurer argued that, since the applicant did not comply with this time limit, he was not entitled to an IRB for any period before the Disability Certificate was submitted.
The applicant stated that he made several attempts to return to work following the accident, but by June 2018, he was unable to continue to work. In light of the attempts to return to work, the applicant believed it was inappropriate to request an IRB. The applicant stated that the insurer was aware of his attempts to return to work through numerous medical reports.
The applicant relied on discoverability. The adjudicator did not agree that discoverability applied. He followed previous decisions which indicate that section 36 creates strict requirements and that a complete claim for an IRB must be made within two years of an accident.
The adjudicator concluded: “I find that the applicant is not entitled to claim for an IRB as it was not applied for in accordance with the procedural requirements of the Schedule and not within 104 weeks of the accident”.