Tribunal File No.: 17-009088/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:
K.B.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Nidhi Punyarthi
APPEARANCES: Ryan Jeffries, Paralegal for the Applicant
Louise Kanary, Counsel for the Respondent
OVERVIEW
1The applicant was involved in an accident on April 14, 2016. He sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied his claim for benefits, and he applied to the Licence Appeal Tribunal (“Tribunal”) for an adjudication of the dispute.
2Pursuant to the Case Conference Order of Adjudicator Norris dated May 23, 2018 (the “Order”), this application proceeded to a written hearing before me.
ISSUE IN DISPUTE
3The issues in dispute in this application are as follows:
i. Is the applicant entitled to receive a weekly non-earner benefit in the amount of $185.00 per week for the period from October 14, 2016 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
4Within its submissions, the respondent also submits that the applicant cannot apply for non-earner benefits at the Tribunal as he was eligible for income replacement benefits that were ultimately paid for a period of time and then stopped based on assessments. As a sub-issue, therefore, I also have to decide whether the applicant can apply for a non-earner benefit at the Tribunal.
RESULT
5I find that the applicant was not barred from applying to the Tribunal with respect to his claim for non-earner benefits.
6I also find that the applicant is not entitled to the benefits or interest claimed.
ANALYSIS
A. The applicant was able to apply to the Tribunal with respect to his claim for non-earner benefits
7The applicant submitted an OCF-1 (application for accident benefits) to the respondent on April 28, 2016. This form provided that:
i. the applicant was employed at the time of the accident and had been working as a cleaner, working 45 hours and making $650 per week;
ii. he was unable to work after the accident; and
iii. he was not in school and was not a caregiver.
8Then, on April 22, 2016, the applicant filed an OCF-3 (disability certificate) (“OCF-3”) with the respondent. The chiropractor who signed the OCF-3 checked off the boxes for all of the following:
i. The applicant suffered a substantial inability to perform the essential tasks of his employment due to the accident;
ii. The applicant suffered a complete inability to carry on a normal life; and
iii. The applicant suffered a substantial inability to engage in the caregiving activities in which he engaged at the time of the accident.
9After receiving this information, the respondent did not provide the applicant an election for either the income replacement benefit or the non-earner benefit.
10On May 17, 2016, the respondent indicated to the applicant that he may be eligible for an income replacement benefit (subject to information that he needed to provide to the respondent), and that he did not meet the criteria to qualify for the non-earner benefit.1
11A week later, the respondent suspended the income replacement benefit because it did not receive information from the applicant.2
12By July 12, 2017, the respondent confirmed that the applicant was not entitled to income replacement benefits because of the results of its Section 44 assessments.[