[S.B.] v. Allstate Insurance, 2019 CanLII 119725

Citation: [S.B.] vs. Allstate Insurance, 2019 ONLAT 18-011525/AABS

Released Date: December 5, 2019

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.B.]

Applicant

and

Allstate Insurance

Respondent

DECISION AND ORDER

VICE CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Mukesh Bhardwaj, Counsel

For the Respondent: Aryeh Samuel, Counsel

Heard in Writing: September 4, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, [S.B.], was involved in a car accident on July 27, 2016. The applicant applied for benefits under the Schedule.¹ The respondent, Allstate Insurance Company, denied those benefits. The applicant then filed an Application for Dispute Resolution (the “application”) to the Tribunal to dispute his entitlement to income replacement benefits (“IRBs”).²

2In response to the application, Allstate requested a preliminary issue hearing to determine whether the issue in dispute ought to be dismissed because the applicant failed to submit a complete Disability Certificate (“OCF-3”) in accordance with s. 36 of the Schedule.

RESULT

3The applicant has not submitted a completed OCF-3 and, therefore, is not entitled to IRBs. The application is dismissed.

BACKGROUND

4The applicant was injured in a car accident on July 27, 2016 and applied for benefits from the respondent. Specifically, the applicant applied for IRBs.

5On or about September 8, 2016, the applicant submitted an Application for Accident Benefits (OCF-1), an Employer’s Confirmation Form (OCF-2) and a Disability Certificate (OCF-3) to the respondent. All three documents are required for determining eligibility and payment for an IRB.

6Upon receipt, the respondent reviewed the documents and determined that the OCF-3 was incomplete. It then wrote the applicant letters dated September 12, 2016 and January 13, 2017 to that effect. Both letters explained that, until it received a completed OCF-3 from a health practitioner, Allstate would not be able to determine the applicant’s eligibility for IRBs.

7Allstate reiterated this same message to the applicant’s counsel in emails dated December 8, 2016 and January 13, 2017.

8On February 15, 2017, Allstate sent the applicant an Explanation of Benefits denying him IRBs given that it had not received the documentation necessary to determine eligibility for the benefit.

9The applicant concedes that, to date, he has not submitted a completed OCF-3.

THE POSITIONS OF THE PARTIES

10Allstate argues that the applicant’s claim for IRBs ought to be dismissed pursuant to s. 36(3) of the Schedule since the applicant has failed to submit a completed disability certificate. Allstate argues that, because the applicant failed to submit a completed OCF-3 by a health practitioner, entitlement cannot begin, and the benefit should be dismissed. In this respect, it relies on Volpe v. The Co-Operators General Insurance Company,³ Straus v. Aviva and Hanna v. Aviva⁴ and OA and TD General Insurance Company⁵ to support its position that the applicant cannot be entitled to an IRB without a completed OCF-3.

11The applicant claims that failure to provide an OCF-3 does not disentitle him to the benefit if, as per s. 34 of the Schedule, he provides a reasonable explanation for not providing one. Here, the applicant explains that he filled out his portion of the OCF-3 and sent it to Allstate, after which he expected his family doctor to fill out the remainder and send the completed form to Allstate as well.

12The applicant also argues that Allstate cannot deem the application incomplete under s. 32(7) until it has fully reviewed the application and has determined that it is unable to determine whether the benefit is payable. The applicant argues that Allstate has not complied with those obligations. The applicant has signed a permission to disclose health information and third party request for personal claims and submitted two treatment plans. The applicant argues that all information received from those sources should be enough to determine entitlement to the benefit. This reasoning, he argues, is in accordance with 16-000279 and Certas Home and Auto Insurance,⁶ in which the adjudicator decided that the insurance company ought to have taken a holistic approach to determining eligibility of a benefit when the health practitioner completed the OCF-3 but failed to check off the box that the applicant met the test for the non-earner benefit.

THE LAW, DECISION AND ANALYSIS

13Sections 36(2) and 36(3) of the Schedule provides that, in order to claim for a specified benefit – in this case, an IRB – an insured must submit a completed disability certificate (OCF-3) with his or her application. If the insured fails to do so, then he or she is not entitled to the benefit for any period before the completed certificate is submitted.

14The issue at the heart of this dispute is whether the applicant has submitted a completed OCF-3 to Allstate, and whether it has any obligations under the Schedule to obtain the required information to determine entitlement to the benefit.

15In order for an OCF-3 to be considered complete, it must be filled out and signed by a health practitioner of the applicant’s choice.⁷ Once the insurer receives that completed OCF-3, it has 10 business days to either pay the benefit, ask for a s.44 assessment or a request for more information under s. 33.⁸

16That being said, if the applicant does not fill out the OCF-3 with the application, perhaps because he did not need to apply for benefits yet, he would have to notify the respondent within seven days of his intention to apply for the benefit once the circumstances give rise to the entitlement to the benefit.⁹ The OCF-3 would still be required to be filled out by a health practitioner in order to begin entitlement to the benefit.

17The applicant argues that Allstate had no right to advise the applicant that he had an incomplete application, in accordance with s. 32(7), unless only after a review of the incomplete application Allstate was unable to determine, without the missing information, whether the benefit is payable. The applicant argues that the respondent had signed authorization forms that allowed it to pursue the required information from the applicant’s treating practitioners.

18The respondent’s obligations under s. 32 extend only to reviewing the incomplete application for a specified benefit and, based on that, whether the information on that application is enough to determine entitlement to the benefit. At that point, if the respondent requires more information, it may ask for it. The OCF-3 supplied by the applicant had no information required for determining entitlement to the IRB. The only information it contained was the basic information regarding the applicant. It did not contain a list of injuries sustained by the applicant in the car accident, whether he could perform the essential tasks of his job and whether he could return to his employment on modified duties/hours. Section 32 does not obligate the respondent to set out exploring to find the information it might need.

19Rather, s. 36(2) puts the onus on the applicant to ensure that the required form, being the OCF-3, is submitted and completed before an entitlement to a benefit begins. The only way the form can be completed is if it is filled out by a health practitioner, which it was not. On at least four occasions, Allstate communicated to the applicant or his counsel that the form had not been filled out. The respondent asked repeatedly for the required information to determine entitlement.

20The applicant suggests that the respondent should take a holistic approach in determining entitlement to the IRB benefit through the information it could have obtained through the applicant’s health practitioners. They rely on decision from the Tribunal, 16-000279 and Certas Home and Auto Insurance. This case can be differentiated on the basis that the OCF-3 in this decision was filled out by a health practitioner but failed to check off the box for entitlement to the non-earner benefit. Numerous clinical notes and records were supplied to the respondent that should have assisted in determining entitlement to the benefit. In this case, however, an OCF-3 was never submitted. Moreover, I have no evidence to suggest that Allstate had the required information to determine entitlement to an IRB.

21Therefore, in accordance with the case law supplied by the respondent, the applicant has not submitted a completed OCF-3 and therefore cannot be entitled to the benefit until they have done so.

ORDER

22I order the application is dismissed.

Released: December 5, 2019

___________________________

Chloe Lester

Vice Chair

Footnotes

1. 1Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”).
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3. 3Volpe v. The Co-Operators General Insurance Company, 2017 ONSC 261.
4. 4Straus v. Aviva and Hanna v. Aviva, 2015 ONSC 4589.
5. 5OA and TD General Insurance Company, 16-003897 2017 CanLII 69447 (ON LAT).
6. 616-000279 and Certas Home and Auto Insurance, 2016 CanLII 73693 (ON LAT).
7. 7Section 3(1) of the Schedule under “disability certificate.”
8. 8Section 36(4) of the Schedule.
9. 9Section 32(1) of the Schedule.