Insured Entitled to Select Which Benefits to Apply for - IRB or NEB

March 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Dominion of Canada – Selection of benefits; insured may select either NEB or IRB, not both; insurer maintains that election form not required and is over ruled.

Applicant v Dominion of Canada General Insurance Company, 16-000063 

Date:    2016-10-03
Heard Before: Adjudicator Lori Marzinotto

REASONS FOR DECISION AND ORDER

OVERVIEW

The Applicant was involved in an automobile accident on November 10, 2013 and sought benefits pursuant to the Schedule. When dispute arose over the eligibility of benefits he Applicant submitted an application for dispute resolution services to the Tribunal.

The Applicant is seeking both non-earner benefits (“NEB”) and income replacement benefits (“IRB”) in her Application for essentially the same time period. The Applicant took the position that she did not have to decide which benefit, (either the NEB or IRB) she would be proceeding with at the hearing before the Tribunal.  The Applicant submitted that she was not sent an election form from Dominion, and therefore, did not have to make an election.  The Applicant acknowledged that she was not entitled to be paid for both benefits at the same time.

Dominion submitted that an election form was not required because the Applicant had “qualified” for income replacement benefits for a short period of time, and because she reported that her self-employment income was nil, Dominion determined that $0.00 was payable to her. The Tribunal ordered a preliminary hearing to resolve the issue of whether the Applicant would be seeking the NEB or IRB at the hearing.

This preliminary issue hearing addresses only the Applicant’s ability to pursue either benefit, not whether the Applicant will be successful in her claim for either.

Issue:

1. Is the Applicant entitled to claim either non-earner benefits or income replacement benefits?

DECISION

1. The Arbitrator found that pursuant to s.35 (1) of the Schedule, the Applicant was entitled to notice from Dominion to elect the benefit she wished to receive.

The Application for Accident Benefits (OCF-1) indicated that the Applicant was unemployed, and so a Notice of Election of benefits was not required at this point. However, once the applicant provided the completed Disability Certificate (OCF-3) to Dominion on October 22, 2014, indicating that the Applicant was self-employed, the Applicant may have been eligible for either the NEB or IRB.  At that point, a Notice of Election should have been provided to the Applicant, or at the very least Dominion should have advised the Applicant that she was eligible for one of the benefits.  As a result, the Applicant is entitled to seek both NEBs and IRBs in her Application, and can proceed to a hearing before the Tribunal to determine her entitlement to either benefit.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.