The past 14 years have seen a few tweaks to both the Eligibility Criteria and the Period of Benefits for an IRB. The New SABS (O. Reg. 34/10) is no different.
We have addressed the changes below, including the removal of the Whiplash Associated Disorder (WAD), and the changes to the Election among Income Replacement, Non-earner and Caregiver benefits found in the new Section 35.
For ease of reference, we have also included the wording of the sections of the New SABS for your review.
ELIGIBILITY CRITERIA (Section 5)
Like the Old SABS, the Eligibility Criteria section relates to impairments sustained within the first 104 weeks following the accident.
No significant changes have been made to the criteria of an insured who was unemployed at the time of the accident (see actual wording below).
Substantial Inability to Perform
The New SABS requires the insured to have suffered a SUBSTANTIAL INABILITY to perform the essential tasks of their employment in order to be eligible for an IRB (s 5(1)1.). This is not a change from the Old SABS (s 4(1)1.).
However, a new section (5(1)2.) has been added to address the distinction between employed and self-employed individuals. In this section, the self-employed insured is also required to have suffered a SUBSTANTIAL INABILITY as it relates to their self-employment, versus employment.
Employed versus Self-Employed
Throughout Sections 5 and 6 of the New SABS, a distinction is made between employed and self-employed individuals. This is consistent with the new definitions detailed in Sections 3 and 4.
For a further discussion on the differences between employed and self-employed insured’s, see our new post.
Future Contract of Employment
Income Replacement Benefits based on future contracts under the Old SABS (O. Reg. 403/96) were limited to accidents which occurred prior to April 15, 2004 (s 4.(2) of the Old SABS). The New SABS removes all references to Future Contracts of Employment.
For further details on future contracts of employment, we refer you to two significant decisions which also reference others:
- Adami and Wawanesa (FSCO A08-000172)
- Virani and Allstate (FSCO A02 B 001644)
Election of Income Replacement, Non-earner or Caregiver Benefit (Section 35)
Subsection 5.(2) of the New SABS is a new addition. It states that if an insured person has elected to receive either a non-earner benefit or a caregiver benefit under Section 35, they are not eligible to receive an IRB.
This seems to reaffirm what is already stated in Section 35, that an insured can elect to receive only one of the benefits available. However, subsection 35(3) does allow the insured to re-elect if it is determined at a later point in time that they have incurred a catastrophic impairment.
For additional information on non-earner benefits, we recommend you read our upcoming blog on the topic.
PERIOD OF BENEFIT (Section 6)
The Period of Benefit remains mostly the same, with the exceptions detailed below.
The insurer is still not required to pay an IRB for the first week of disability or for any period after 104 weeks of disability unless the insured suffers a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
Minor Injury versus WAD I & II
The references to the Grade I and II whiplash associated disorders (WAD) have been removed. This is consistent with the changes throughout the New SABS to using the Minor Injury criteria.
Unlike the WAD I & II, which had 12 and 16 week limitations on IRBs, there is no similar limitation associated with the Minor Injury criteria. And while it appears there is an expectation under the Minor Injury Guidelines (MIG) that an insured will recover within 12 weeks, there does not appear to be any limits applied to an IRB. Over time this may lead to insured individuals receiving IRBs but being ineligible for any other payments for medical or rehabilitation.
As our understanding of these changes continues to evolve, we will continue to update this post.
Should you have any specific questions, please do not hesitate to contact us directly at 1-800-380-7908 ext ASK (275) or at email@example.com.