S.A. v. Unifund Assurance Company, 2016 CanLII 153049

Tribunal File Number: 18-008996/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

S.A.

Appellant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Enzo N. Timperio, Counsel

For the Respondent: Danielle Lecours, Counsel

HEARD In Writing on: April 8, 2019

OVERVIEW

1S.A., the applicant, was injured in a motor vehicle accident on April 5, 2016 and applied for accident benefits with the respondent, Unifund Assurance Company, under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). Specifically, the applicant applied for a non-earner benefit from October 5, 2016 to date and ongoing.

2In support of his claim, the applicant relies on the evidence he provided by affidavit and an amended OCF-3 from his chiropractor. The applicant claims, that under section 36 of the Schedule, the respondent failed to respond to the amended OCF-3 and, as such, the applicant is entitled to be paid the non-earner benefit. The respondent denies ever receiving the amended OCF-3. Moreover, the respondent argues that if it failed to respond to the amended OCF-3, the applicant is not automatically entitled to the benefit and must prove entitlement. The respondent maintains the applicant is therefore not entitled to the benefit as he has not presented evidence to support his claim for a non-earner benefit.

ISSUES

3The following are the issues to be decided:

a. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from October 5, 2016 to date and ongoing, submitted on April 12, 2016 and denied on July 21, 2016?

b. Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?

c. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4For the reasons set out below, I find that the applicant is not entitled to a non-earner benefit from October 5, 2016 to date and ongoing. The applicant is not entitled to an award under Ontario Regulation 664. Interest is not payable, as there is no overdue payment of benefits.

Non-Earner Benefit

5There are two issues to be considered respecting the non-earner benefit:

a. Is the applicant entitled to the non-earner benefit under section 36 of the Schedule?

b. Has the applicant presented evidence to establish entitlement to a non-earner benefit?

6Based on the totality of the evidence and for the reasons set out below, I find that the applicant is not automatically entitled to the non-earner benefit under section 36 of the Schedule and he has not established that he is entitled to a non-earner benefit from October 5, 2016 to date and ongoing.

ANALYSIS

Section 36 Argument

7The applicant¹ argues that the respondent is required to pay the non-earner benefit because it failed to respond to an amended Disability Certificate (OCF-3) sent to the respondent by letter dated May 17, 2016.

8The applicant relies on section 36 of the Schedule, which requires an insurer to respond to the submission of an Application for Accident Benefits and Disability Certificate, within 10 days, in one of three ways, being, either to:

a) Pay the benefit;

b) Send a notice outlining the medical or other reasons why the benefit is not payable or provide notice of a section 44 examination; or,

c) Send a request for information under section 33.

9The respondent denies having received the amended OCF-3. Alternatively, if it failed to respond, the applicant’s argument that he is automatically entitled to the non-earner benefit is not supported by case law.

10I note that section 36 of the Schedule also states that an applicant who fails to submit a completed Disability Certificate is not entitled to a specified benefit for any period until a completed disability certificate is submitted.

The Disability Certificates (OCF-3s)

11There are two Disability Certificates (OCF-3s) in issue. Both are dated May 3, 2016. The second OCF-3 in issue, referred to as the amended OCF-3, was amended on May 12, 2016. Dr. Chapieski, chiropractor, completed the first Disability Certificate (OCF-3) dated and signed May 3, 2016, in which he noted the applicant sustained whiplash, a sprain and strain of the lumbar spine and sciatica as a result of the accident. Dr. Chapieski indicated the applicant does not suffer:

a. a complete inability to carry on a normal life

b. a substantial inability to engage in his pre-accident caregiving activities; and,

c. a complete inability to perform the housekeeping and home maintenance services that he normally performed before the accident.

12On May 11, 2019, the applicant sent a letter² to the respondent stating that he asked the chiropractor to revisit the OCF-3, as it was completed by the chiropractor without discussing with the applicant the activities that he ordinarily engaged in prior to the accident. Dr. Chapieski amended the Disability Certificate³ (the amended OCF-3) on May 12, 2016. In the box that states whether the applicant had an inability to carry on a normal life, this was changed to “yes” from “no.” This change also applies to the statement that the applicant was completely unable to perform the housekeeping and home maintenance services that he normally performed before the accident. The statement that he was substantially unable to engage in his pre-accident caregiving activities is unchanged. This level of disability was expected to persist for more than 12 weeks.

13On May 17, 2016, the applicant claims the amended OCF-3 was sent by his representative, by letter dated May 17, 2016, via fax transmission to the respondent.⁴ The respondent states it has no record of ever having received the May 11 letter and amended OCF-3 prior to the application.⁵

14On July 21, 2016, the respondent replied to the applicant by Explanation of Benefits which denied the non-earner benefit on the basis that the OCF-3 did not support the claim for a non-earner benefit.⁶

15The respondent submits that it responded to the applicant's claim for non-earner benefits in accordance with its obligation under the Schedule by way of Explanation of Benefits dated July 21, 2016.

16The respondent does not dispute the fact that it has not specifically addressed the amended OCF-3, which it denies having received. It has no record of having received the amended OCF-3 at any point prior to service of the application. It states this does not amount to a failure on its part to adequately respond to the applicant's claim for non-earner benefits.

17Alternatively, if it is found to not have responded to the amended OCF- 3, this does not automatically entitle the insured to payment of benefits because he is still required to prove his claim.

18The only evidence that the applicant sent the amended OCF-3 is the fax verification transmission sheet of May 17, 2016 which indicates five pages were sent to the insurer on May 17, 2016. I find this is not sufficient evidence to establish the respondent received the amended OCF-3 at any time prior to the application to the respondent. The respondent states it never received the amended OCF-3. The adjuster’s log notes also contain no reference to having received the amended OCF-3 and as time progressed by 2017, the notes indicate that unless an amended OCF-3 is received, the file should be closed. As required by section 36, the respondent would have had to respond had it received the amended OCF-3.

19Therefore, I find the respondent did not receive the amended OCF-3. I find the obligation of the insurer to act in response to the amended OCF-3 was thus not triggered. The respondent at that time did not have an OCF-3. As such, I reject the applicant’s argument that it is entitled to payment of the benefit on the basis of the amended OCF-3 filed on May 17, 2016. My finding also means the applicant failed to submit the required OCF-3 for entitlement.

20I also find the respondent provided a response to the OCF-3 dated May 3, 2016 in its Explanation of Benefits dated July 21, 2016 denying the benefit. It did respond and stated, based on the OCF-3 as written at that time, that there was no entitlement to the benefit.

21I agree that the finding in the decision Stranges⁷ applies to this matter. In that case, the Court of Appeal held that an inadequate refusal notice from the insurer does not automatically entitle the insured person to payment of ongoing weekly benefits in perpetuity until proper notice is given. The insured in that case was required to prove entitlement. I agree with the respondent that the applicant in this case would still have to prove entitlement to the weekly benefit.

22As outlined below, there is no evidence to prove entitlement.

Entitlement to the Non-Earner Benefit

23The test for entitlement to a non-earner benefit is set out in sections 3(7)(a) and 12 of the Schedule. Section 12 states the insurer shall pay a non-earner benefit to an insured in the amount of $185 per week who sustains an impairment as a result of an accident if the insured person satisfies that they suffer 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. Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

24The parties referred to the case of Heath v. Economical Mutual Insurance Company,⁸ which outlines several principles to assess entitlement to a non-earner benefit. In summary, these include:

a) A comparison of the applicant’s daily life activities before and post-accident.

b) A consideration of all the applicant’s pre-accident activities but greater weight can be placed on activities seen as more important to the applicant pre accident.

c) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

d) The accident-related injuries must continuously prevent an insured from engaging in substantially all of their pre-accident activities. The disability has to be uninterrupted.

e) The evidence must demonstrate that the insured has significant restrictions in performing an activity as a result of the injuries sustained in the accident.

f) “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

25The applicant relies on the two OCF-3s and the affidavit of the applicant sworn March 8, 2019. As outlined above, the first OCF-3 was completed without the chiropractor properly assessing the applicant. This raises an issue of credibility and reliability of the stated position in the amended OCF-3. Dr. Chapieski changed his conclusion from "no" to "yes" on entitlement to a non-earner benefit. The only evidence about the change is the fact that the applicant’s representative sent the request asking for a change as the applicant stated in his affidavit that the OCF 3 did not reflect the circumstances.

26More importantly, I find that the amended OCF-3, even if it is was found to have been delivered to the respondent, provides no outline, as is required in Heath, of the pre-accident activities performed by the applicant and how they are impacted by the injuries from the accident. The OCF-3 contains only a general statement that the applicant cared for five children before and after the accident and shared caregiving and housekeeping and maintenance with his spouse. This description is not sufficient, as required by the principles stated in Heath. I am unable to do a comparison of the pre-accident and post-accident activities.

27The applicant’s affidavit⁹ in support of his claim for non-earner benefits also fails to provide a detailed comparison of his pre-and post- accident activities and how the accident-related injuries prevent him from engaging in substantially all of his pre-accident activities.

28Apart from the OCF-3s, the applicant has not provided any medical evidence in support of his claim for non-earner benefits. I agree with the respondent that a Disability Certificate alone is not sufficient to substantiate entitlement to non-earner benefits.¹⁰ It is the applicant’s onus to provide evidence such as sworn affidavits outlining his life before and after the accident, physician reports, and clinical notes and records from various medical practitioners to prove entitlement to the said benefit. I find that the evidence provided in this regard does not support a claim for a non-earner benefit.

29Taking into consideration all of the evidence submitted by the applicant, the applicant has not met his onus of proving on a balance of probabilities that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.

An award under Ontario Regulation 664

30Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments.

31The test for this award is a particularly onerous one: has an insurer unreasonably withheld or delayed payment? As the applicant is not entitled to a non-earner benefit, and as the respondent did therefore not owe payment, I find the respondent could not have withheld or delayed payment of a benefit. Thus, the applicant’s claim for an award pursuant to section 10 of Ontario Regulation 664 is dismissed.

INTEREST

32As I find the applicant is not entitled to the benefit claimed, no interest is payable because there are no overdue payments.

CONCLUSION

33For the reasons outlined above, I find that the applicant is not entitled to a non-earner benefit from October 5, 2016 to date and ongoing. The claim for an award pursuant to section 10 of Ontario Regulation 664 is dismissed. The claim for interest is dismissed.

Released: May 21, 2019

Thérèse Reilly, Adjudicator

Footnotes

1. 1Paragraph 16, written submissions of the applicant.
2. 2Letter dated May 11, 2019 to the respondent, Tab 5 of the written submissions of the respondent. This letter was not included in the applicant’s brief.
3. 3Amended OCF 3, tab 3, written submissions of the applicant with letter of May 17, 2016.
4. 4Letter with amended OCF 3 and fax transmittal sheet, at tab 3, applicant written submissions.
5. 5Letter to the respondent dated May 11, 2016 and adjuster’s log notes, from April 6, 2016 to August 7, 2018, tab 5, written submissions of the respondent. There is a discrepancy with the stated date of the letter as the applicant claims it is the May 17, 2016 letter that sent the amended OCF 3 to the respondent. The respondent denies receiving the amended OCF-3.
6. 6Written submissions of the applicant, Tab 7.
7. 7Tab 7: Stranges v. Allstate Insurance Co. of Canada, [2010] O.J. No. 2610, Tab 8; M.F.Z. v. Aviva Insurance of Canada, 2017 CanLII 63632 (ON LAT), written submissions of the respondent.
8. 8Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, tab 3, written submission of the respondent.
9. 9Tab 9, written submissions of the applicant.
10. 1016-002742 v. The Dominion of Canada General Insurance Company, 2017 CanLll 33680 (ON LAT), tab 6, written submissions of the respondent.