The LAT decision in Alkhazov v Aviva Insurance Company of Canada affirms that where an application indicates a possible entitlement to more than one specified benefit under the Statutory Accident Benefits Schedule (Schedule), the Election of Income Replacement, Non-Earner or Caregiver Benefit Form (OCF-10) is required. With the Applicant failing to provide the OCF-10, the Respondent is relieved from paying the benefit on the basis that the application is incomplete and the Respondent’s obligations are not engaged.
The Applicant was injured in a motor vehicle accident on April 18, 2019 and sought accident benefits pursuant to the Schedule. On April 23, 2019, the Applicant filed an Application for Accident Benefits (OCF-1). The OCF-1 stated that the Applicant has returned to work but that he was incapable of returning to his usual employment responsibilities. On June 4, 2019, the Applicant filed a Disability Certificate (OCF-3), as he was substantially unable to perform the essential responsibilities of his employment.
In a letter dated June 10, 2019, the Insurer denied the claim for an Income Replacement Benefit (IRB) and a Non-Earner Benefit (NEB) because the OCF-1 stated that the Applicant had returned to work.
In a letter dated June 14, 2019, the Insurer recognized that the Applicant had met the eligibility requirements for both the IRB and the NEB. The Insurer asked the Applicant to submit an OCF-10 and this request was couched in terminology found in section 33 of the Schedule in that further information was required by the Insurer before it could adjust the claim for benefits.
On April 12, 2021, the Applicant filed an application with the LAT. The Applicant has not submitted an OCF-10. The Insurer filed a motion raising the preliminary issue of whether the Applicant should be barred from proceeding with his claim for a NEB as he failed to submit an OCF-10.
Adjudicator Makhamra found that section 35(1) of the Schedule states that if an Applicant meets the criteria for two or more of the IRB, the NEB, and the caregiver benefit, the insurer shall give notice to the Applicant that he or she must elect the benefit he or she wishes to receive. Further, sections 5(2) and 13(3) prohibits an Applicant from receiving more than one of the IRB, NEB or caregiver benefit. For an insurer to determine which two benefits the insured is precluded from receiving, the insured must elect one of the benefits. Pursuant to section 33 of the Schedule, the Applicant is required to provide information reasonably required to determine his entitlement to a benefit. It was further found that the applicant failed to submit an OCF-10 requested under section 33. With the applicant failing to provide the OCF-10, section 33(6) relieved the Insurer from paying the NEB.
On the basis that the application is incomplete because of the Applicant’s failure to provide an OCF-10 as required under section 35(1), the Insurer’s obligations are not engaged, including the obligation to pay a benefit under section 12.
The LAT held that the Applicant was required to submit an OCF-10, and therefore he is barred from proceeding with his claim for a NEB.
Adrienne Bramson is an articling student and the author of this blog. If you have any questions about this decision or a related file please contact Adrienne at [email protected] or Eric Grossman at 416.777.5222
