20. (1) An insurer shall pay an insured person weekly loss of earning capacity benefits instead of weekly income replacement benefits under Part II, weekly education disability benefits under section 15, weekly caregiver benefits under Part IV or weekly disability benefits under Part V if the payment of loss of earning capacity benefits is authorized by this Part.  O. Reg. 776/93, s. 20 (1). (2) A weekly loss of earning capacity benefit under this Part is payable during the lifetime of the insured person and is subject to such adjustments in the amount of the benefit as are provided in this Regulation.  O. Reg. 776/93, s. 20 (2). Application of Sections 21 to 25

20.1 Sections 21 to 25 apply only if, before March 1, 2006,  (a)  the insurer has refused to pay weekly income replacement benefits under Part II, weekly education disability benefits under section 15, weekly caregiver benefits under Part IV or weekly disability benefits under Part V; (b)  the insurer has not made an offer with respect to the payment of weekly loss of earning capacity benefits under section 21 and there is no agreement under section 24 or 25; and (c)  one of the following has been commenced in accordance with subsection 279 (1) of the Act, as it read immediately before the day on which section 14 of Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014
comes into force, in respect of the insured person’s entitlement to a benefit referred to in clause (a), (i)  an arbitration proceeding under section 282 of the Act, as it read immediately before the day on which section 14 of Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 comes into force, (ii)  an arbitration proceeding under the Arbitration Act, 1991, or (iii)  a court proceeding. O. Reg. 26/06, s. 2; O. Reg. 46/16, s. 4. Insurer’s Offer

21. (1) Subject to subsections (7) to (9), an insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning capacity benefits if one or more of the following circumstances occurs: 1.  The insured person qualified for weekly income replacement benefits under Part II and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits. 2.  The insured person qualified for weekly income replacement benefits under Part II, did not qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, but subsequently becomes entitled to resume receiving weekly income replacement benefits under section 14. 3.  The insured person qualified for weekly caregiver benefits under Part IV, subsequently elected under section 61 to receive weekly income replacement benefits under Part II, and 104 weeks after the onset of the disability in respect of which he or she first qualified for weekly caregiver benefits continues to qualify for weekly income replacement benefits. 4.  The insured person qualified for weekly education disability benefits under section 15 and, 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits or on the date the person attains sixteen years of age, whichever occurs later, continues to qualify for weekly education disability benefits. 5.  The insured person qualified for weekly education disability benefits under section 15, does not qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits or on the date the person attains sixteen years of age, whichever occurs later, but subsequently becomes entitled to resume receiving weekly education disability benefits under section 17. 6.  The insured person qualified for weekly caregiver benefits under Part IV, is unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident, elects at any time 104 weeks or more after the onset of the disability in respect of which he or she first qualified for weekly caregiver benefits to be governed by this Part instead of Part IV or V and, i.  continues to qualify for weekly caregiver benefits, or ii.  ceases to qualify for weekly caregiver benefits because there is no longer any person who meets the qualifications set out in subsection 18 (5). 7.  The insured person qualified for weekly disability benefits under Part V, continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, and, i.  is unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident, ii.  would have joined or returned to the workforce at some time after the accident, and iii.  elects to be governed by this Part instead of Part V.  O. Reg. 776/93, s. 21 (1). (2) If a person qualifies for weekly caregiver benefits under Part IV 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, the insurer shall promptly provide the person with notice that he or she may be entitled to make the election referred to in paragraph 6 of subsection (1).  O. Reg. 776/93, s. 21 (2). (3) If a person qualifies for weekly disability benefits under Part V 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, the insurer shall promptly provide the person with notice that he or she may be entitled to make the election referred to in paragraph 7 of subsection (1).  O. Reg. 776/93, s. 21 (3). (4) An election under paragraph 6 or 7 of subsection (1) may not be changed.  O. Reg. 776/93, s. 21 (4). (5) An offer under subsection (1) shall specify, (a)  the insured person’s pre-accident earning capacity determined in accordance with section 29; (b)  the type of employment that best satisfies the criteria set out in subsection 30 (2); (c)  the insured person’s residual earning capacity determined in accordance with section 30; and (d)  the amount of the weekly loss of earning capacity benefit, if any, determined in accordance with section 28.  O. Reg. 776/93, s. 21 (5). (6) The offer shall include a notice that, if the offer is not accepted within forty-five days after its receipt or such longer period to which the insurer and the insured person may agree, the insured person shall be deemed to have rejected the offer in respect of both residual earning capacity and pre-accident earning capacity and the insured person will be required to be examined under section 65.  O. Reg. 776/93, s. 21 (6); O. Reg. 26/06, s. 3. (7) Subsection (1) does not apply if the insured person is sixty-five years of age or older.  O. Reg. 776/93, s. 21 (7). (8) The time for delivering an offer under subsection (1) may be extended by agreement between the insurer and the insured person.  O. Reg. 776/93, s. 21 (8). (9) If an insured person suffers an impairment as a result of an accident that occurs after the accident in respect of which an offer would, in the absence of this subsection, be given under subsection (1), and the latter accident results in a disability in respect of which weekly benefits are payable under Part II, section 15, Part IV or Part V, the operation of subsection (1) is delayed until 104 weeks after the latter accident.  O. Reg. 776/93, s. 21 (9). Insured Person’s Response to Offer