Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260

1-800-255-2214

TTY: 416-916-0548

1-844-403-5906

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1-844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2

Tél. : 416 314-4260

1 800 255-2214

ATS : 416 916-0548

1 844 403-5906

Téléc. : 416 325-1060

1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

Date: 2017-05-05

Tribunal File Number: 16-002892/AABS

Case Name: 16-002892 v Allstate Canada Group

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:

Applicant

Applicant

and

Allstate Canada Group

Respondent

DECISION

ADJUDICATOR: Monica Purdy APPEARANCES:

For the applicant: Paul Barrafato, Counsel For the respondent: Curtis Zizzo, Counsel

Written Hearing: January 26, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in a motor vehicle accident on September 11, 2014. He applied for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) that includes income replacement benefits, caregiver and non-earner benefits. The respondent denied the claims for these benefits. The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefit Services (“Tribunal”).

2This decision addresses two preliminary issues. I must first determine whether the applicant is statute barred from claiming non-earner benefits given the limitation period set out in s. 56 of the Schedule. Secondly, I must decide if the applicant is able to advance his claim for the non-earner benefits after the 26 week waiting period ended, on March 11, 2015.

3The applicant submitted 2 separate Application for Benefits (OCF1) for non- earner benefits. On both applications dated September 12, 2014 and October 18, 2014, respectively, he made a claim for income replacement benefits, caregiver and non-earner benefits.

4The respondent replied to the first application by denying the claim for caregiver and non-earner benefits on September 25, 2014. With respect to the income replacement benefits claim, the respondent requested a disability certificate from the applicant. Regarding the claim for non-earner benefits, the denial letter states:

You are not eligible for non-earner benefits as you were employed and working at the time of the accident.

5The applicant responded to the denial with the second application that included a letter explaining his unique employment situation, an election for non-earner benefits and the disability certificate that was requested by the respondent. In the letter the applicant explained that he was in his second day of job training when the accident occurred. He was told by his employer that he would not be paid until he had completed all 5 days of the training.

6The disability certificate completed by Dr. Hana indicated that the applicant met the test for income replacement benefits. Dr. Hana also noted that the applicant worked only for 2 days. At the time he submitted his second application the applicant was not represented by counsel.

7The respondent replied to the second application on January 24, 2015, maintaining their original denial of September 25, 2014. There was no acknowledgement or response to the election for non-earner benefits that was also part of the second application package.

8The respondent raised a preliminary issue stating that the applicant is statute barred from applying to the Tribunal for non-earner benefits, denied on September 25, 2014.

9The applicant’s position is that the time limitation does not begin to run until 5 days after the date of refusal notice is deemed received which was October 2, 2014. The applicant filed his application on September 27, 2016 to the Tribunal.

10The respondent is of the view that the applicant did not submit an application for non-earner benefits until September 2016 when the applicant submitted a disability certificate supportive of the applicant’s claim for non-earner benefits, and therefore the claim for non-earner benefits should be limited to the date on which the applicant’s disability certificate was received, pursuant to section 36(3) of the Schedule. Whereas, the applicant’s position is that entitlement to the benefit should be based on the October 2014 election of benefits and disability certificate.

11I find that the applicant filed his appeal within the 2 year statutory period as defined by the Schedule. The limitation period did not begin to run until the notice of denial was received by the applicant, October 2, 2014. The applicant’s appeal was received by the Tribunal on September 27, 2016, still within the 2 year limitation period as set out in the Schedule.

12With regards to the second issue, I find the applicant is entitled to advance his claim non-earner benefits based on the October 2014 election of benefits and disability certificate. My reasons for the rulings are set out below as follows:

ISSUES

13The following are the issues in dispute as I understand them to be:

a. Did the applicant file his appeal within the two year limitation period?

b. Is the applicant entitled to advance his claim for non-earner benefits after the 26 week waiting period ended on March 11, 2015 pursuant to Section 12(4) (a) of the Schedule?

c. Is the applicant entitled an order of costs?

RESULTS

14I find that this appeal was filed within the 2 year limitation period.

15I also find the applicant is able to advance his claim for non-earner benefits after the 26 week waiting period ended on March 11, 2015.

16I find that the applicant is not entitled to costs.

APPLICATION OF LAW TO FACTS

Preliminary Issue

a) Did the applicant file his appeal within the two year limitation period?

17Section 56 of the Schedule states that the applicant has two years to file an appeal to the Tribunal regarding the respondent’s denial of benefits.

18Section 64(2), states that any document, including a notice in writing, to be given to a person may be delivered by ordinary mail. Under section 64(18), anything delivered by ordinary mail is deemed received on the fifth business day after the day the document is mailed.

19The respondent mailed a letter dated September 25, 2014, refusing the applicant’s claim for non-earner benefits. Allowing five business days for delivery, the applicant would have received the refusal of benefits on October 2, 2014. The applicant’s appeal to the Tribunal was received and stamped September 27, 2016.

20I find that the limitation period began on October 2, 2014. As such, when the applicant filed his appeal to the Tribunal, he was still within the 2 year limit set by the Schedule.

b) Is the applicant entitled to advance his claim non-earner benefits after the 26 week waiting period ended on March 11, 2015 pursuant to Section 12(4) (a) of the Schedule?

Respondent’s position

21If the claim is allowed, which I have decided it is, the respondent’s position is that the applicant’s entitlement to non-earner benefits should begin on September 26, 2016, the date that a completed disability certificate (dated January 15, 2015), was received. The respondent argues that the only disability certificate that indicated that the applicant met the test for non-earner benefits was the one they received on September 26, 2016.

22No disability certificate indicating entitlement to non-earner benefits was received by the insurer prior to September 2016. Section 36 (3) of the Schedule requires the applicant to submit a completed disability certificate when applying for a specific benefit. TheSchedule states that the applicant is not entitled to the specific benefit for any period before the completed disability certificate is submitted.

23The respondent noted that it previously received a disability certificate dated October 16, 2014 that indicated eligibility for income replacement benefits only.

24The respondent submits that it was not aware of the applicant’s claim for non-earner benefits until it received the disability certificate on September 26, 2016.

Applicant’s position

25The applicant’s position is that he is entitled to non-earner benefits after the 26 week waiting period ended, on March 11, 2015. The applicant argues that he is entitled to claim non-earner benefits based on the second application which included the letter, an election for benefits form (OCF-10) and the disability certificate he submitted in October 2014.

26In the letter, the applicant wrote that he worked for 2 days prior to the accident and was seeking some type of wage compensation from the insurer. The disability certificate was completed by the applicant’s family doctor and indicated eligibility for income replacement benefits but not non-earner benefits. The applicant received a letter dated November 4, 2014 from the respondent stating that the disability certificate was incomplete and Parts I and II needed to be filled in. Although the disability certificate was corrected, it was resubmitted to insurer on December 22, 2014 while retaining the original date of October 16, 2014.

27The applicant submitted a second disability certificate completed by the same physician dated January 15, 2015. The disability certificate indicated that the applicant had a complete inability to carry on a normal life and therefore was entitled to receive non- earner benefits. That disability certificate was not sent to the respondent until September 26, 2016 as it remained on the applicant’s medical file after it was completed by the family physician. The error was discovered around the time that the Tribunal application was filed in September 2016.

28The applicant’s position is that the respondent was aware of the circumstances giving rise to his claim for non-earner benefits before the disability certificate was received on September 26, 2016. The election for non-earner benefits that was filed with the respondent in October 2014 would serve to alert the respondent that the applicant was also applying for non-earner benefits.

Analysis

29The applicant is required to submit a disability certificate with his or her application under Section 36 (2) of the Schedule. Section 36(3) states that failure to submit a complete disability certificate disentitles the applicant to a specific benefit for any period before the disability certificate is submitted. Immediately following the accident the applicant submitted the initial application for non-earner benefits in September 2014.

30The applicant also signalled his intent to seek non-earner benefits on the second application that was submitted in October 2014 which also included the election of benefits form for non-earner benefits and letter explaining the applicant’s employment. I find that the insurer knew or ought to have known that the applicant was applying for non-earner benefits at that time. While the disability certificate was incomplete, there was other information that the respondent could have used to initiate the applicant’s initial entitlement to non-earner benefits, such as the election of non-earner benefits that was also filed with the disability certificate.

31The family physician indicated on this disability certificate that the applicant met the test for income replacement benefits and not non-earner benefits. Although the disability certificate dated October 16, 2014 did not indicate the applicant suffered a complete inability to carry on a normal life, it does not mean he’s prevented from filing a claim for non-earner benefits. The physician also noted on the form that the applicant only worked for 2 days. I am of the view that this information was sufficient to show that the applicant intended to claim non-earner benefits. I find that the applicant filed an applicant for non- earner benefits with the submission of the election of non-earner benefits and the disability certificate to the respondent in October 2014.

32The applicant referred to several cases, from the Tribunal and Financial Services Commission of Ontario (“FSCO”), in support of his appeal for non-earner benefits. Although I am not bound by the decisions, I find the principles helpful in deciding the issue before me. Particularly, as the issue is the same with regards to a non-supportive disability certificate in 16-000279 v. Certas Home and Auto Insurance Company [hereinafter Certas]¹.The Tribunal found that although the disability certificate indicated that the applicant did not meet the test for non-earner benefits, this did not preclude the applicant from being considered for the benefit.

33In Beltrame v. Dominion of Canada General Insurance Company² and Moran v. Economical Mutual Insurance Co.³, FSCO also came to similar conclusions as the Tribunal did in the Certas decision. These decisions determined that where the disability certificate did not indicate eligibility for non-earner benefits, the respondent was directed to consider other information on the applicant’s file that could potentially establish a claim for non-earner benefits.

34The applicant argued that his claim for non-earner benefits is supported by sufficient information submitted to the respondent. He had ongoing correspondence with the respondent that showed he was approved for multiple treatment plans for medical benefits by the respondent. The first treatment plan for physiotherapy was approved on January 26, 2015 in the amount of $1,700. On March 4, 2015, the insurer also approved a treatment plan for physiotherapy dated January 14, 2015 in the amount of $3,133.06, and on April 1, 2015, a treatment plan for physiotherapy dated March 16, 2015 was approved in the amount of $1,931.70.

35While the disability certificate is important and indicates potential disability of the applicant, the respondent also has an ongoing obligation to assess the applicant’s impairments and make adjustments to the file. To make a fair assessment of the applicant’s claim, the respondent cannot look solely to the disability certificate. The respondent responsibilities include reviewing the applicant’s entire file as a whole and advising the applicant of potential eligible benefits.

36The case law appears to indicate that the analysis does not rest on whether a disability certificate indicates if the non-earner test is met to determine if a benefit has been properly applied for, but the totality of dealings between the insurer and insured. At week 26 after the onset of the complete inability to carry on a normal life, the respondent can submit the applicant to an insurer's examination to determine his eligibility for non-earner benefits if there was any question with regards to his eligibility for the benefit pursuant to s. 36(4)(b) of the Schedule.

37I find that there were two occasions when the respondent ought to have known the applicant was applying for non-earner benefits and should have considered the applicant’s non-earner benefits claim. The first was in in October 2014 when the applicant submitted his election for non-earner benefits. The respondent referred to the first denial of September 2014 in their January 24, 2015 response to the second application. Up until the time of the application to the Tribunal the respondent has not responded or acknowledged the applicant’s election for non-earner benefits that was submitted to them in October 2014.

38The second time that the respondent should have known that the applicant was applying for non-earner benefits was on May 11, 2016 when the confirmation of employment was submitted to the respondent confirming the applicant’s employment status and potential eligibility for non-earner benefits. The employer confirmed that the applicant was not paid for the two days that he worked because he was in training. The accident interrupted his employment training. This means that the applicant likely was entitled to claim non- earner benefits rather than income replacement benefits for which he also initially applied. There was no indication that the respondent adjusted the applicant’s file following the confirmation of his employment status.

39Further, the respondent has approved treatment plans for psychological and other treatments since the accident, an indication that they were aware of the applicant’s medical condition and potential entitlement to non-earner benefits. Another indication of possible eligibility for the non-earner benefits, as indicated in the above paragraphs, is that the applicant was removed from the Minor Injury Guideline within 6 months after the accident based on his physical injuries. The applicant was further approved for psychological treatments in August 2016. The ongoing interactions between the applicant and respondent demonstrates an awareness on the part of the insurer of the applicant’s circumstances giving rise to his claim for non-earner benefits. I find that the respondent had more than sufficient information to consider the applicant’s non-earner benefits application well before September 2016 based on the information that was provided to them, overall, by the applicant.

40Under Section 36(4) (b) of the Schedule, the insurer can give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the non-earner benefits. Further, if the insurer requires an examination under section 44 relating to the non-earner benefits, it can advise the applicant of the requirement for an examination by sending him a request under Section 33(1) or (2).

41After reviewing the written submissions of the parties, the documentation and supporting case law I find on balance of probabilities that the applicant’s claim for non-earner benefits was correct based on the October 2014 election of benefits form and disability certificate.

Is the applicant entitled to costs?

42Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) provides that costs may be requested in a proceeding where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.

43The applicant has not provided any evidence to indicate that the respondent acted unreasonably, frivolously, vexatiously or in bad faith.

44I find that the applicant is not entitled to costs in this matter.

ORDER

45Pursuant to the authority vested in it under the provisions of the Insurance Act⁴, the Schedule and Rule 6.2 of the Tribunal’s Rules, the Tribunal concludes, that the limitation period did not begin to run until 5 days after the letter of denial was mailed to the applicant. The applicant filed his application with the Tribunal within the time limitations as set out in the Schedule.

46Further I find that the applicant is entitled to advance his claim for non-earner benefits after the 26 week waiting period ended, on March 11, 2015.

Released: May 5, 2017

Footnotes

1. 116-000279 v Certas Home and Auto Insurance Company, 2016 CanLII 73693 (ON LAT)
2. 2Beltrame v Dominion of Canada General Insurance Co., 2014 CarswellOnt 8657, [2014] OFSCD No. 108 (WL Can) (FSCO (Arb. Dec.)).
3. 3Moran v Economical Mutual Insurance Co., 2016 CarswellOnt 5688, (WL Can) (FSCO (Arb. Dec.)).
4. 4Insurance Act, R.S.O. 1990, c. I.8