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Entitlement to an IRB Disqualifies an Insured’s Entitlement to a NEB

January 11, 2023

The recent Licence Appeal Tribunal (LAT) decision, Ozor v Aviva Insurance Company (20-011733/AABS), states that per Section 12 of the Statutory Accident Benefits Schedule (SABS), the insured cannot receive a non-earner benefit (NEB) if the insured qualifies for an income replacement benefit (IRB).

Specifically, Section 12(1) of the SABS states, “The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if…

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.”

According to Section 5(1) of the SABS, “The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

1.The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or

ii. was not employed at the time of the accident but,

A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

B. was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and

C. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

2. The insured person,

i. was a self-employed person at the time of the accident, and

ii. suffers, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his or his self-employment.”

In this case, the insured was employed at Extreme Pita at the time of the accident and had worked 26 out of the previous 52 weeks.  In addition, the insured returned to work two days after the accident. Accordingly, it was found that the insured met the eligibility criteria for an IRB and therefore, did not qualify for a NEB.

Read the decision in full detail here: Ozor v Aviva Insurance Company (20-011733/AABS)

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