Release date: 10/22/2021
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:
Raluca Ganea
Applicant
and
Travelers Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
Raluca Ganea, Applicant
Shannon Kelly, Counsel
For the Respondent:
Ada Lika, Counsel
HEARD In Writing:
November 2, 2020
ISSUE
1This is a preliminary issue hearing wherein the parties seek an answer to the following: was the insurer’s request for an OCF-10 and an insurer’s examination, prior to initiating income replacement benefits payments, in accordance with s. 36 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)?
RESULT
2Based on the evidence before me, I find that the insurer’s request for an OCF-10 and an insurer’s examination, prior to initiating income replacement benefits payments, was in accordance with s. 36 of the Schedule.
BACKGROUND
3The applicant was injured in a motor vehicle accident (“MVA”) on March 28, 2019. She submitted an Application for Accident Benefits (“OCF-1”) to the respondent on April 4, 2019. Part 5 of the OCF-1 states that the applicant was employed and working at the time of the accident.
4The respondent responded to the OCF-1 by way of correspondence dated April 18, 2019, wherein two Employer's Confirmation Forms (“OCF-2”) were requested. The respondent also advised the applicant that a forensic accountant would be retained.
5A subsequent letter dated May 3, 2019 was sent by the respondent advising the applicant that she may be entitled to an Income Replacement Benefit (“IRB”) and requested a Disability Certificate (“OCF-3”) pursuant to s.33 of the Schedule”.
6The applicant submitted the requested OCF-3 on or about May 20, 2019. The OCF-3 was completed by the applicant's family doctor, Dr. Stribbell. The OCF-3 indicates that the applicant suffers a substantial inability to complete the essential tasks of her pre-accident employment and that she can return to work on a modified basis. It also indicates that the applicant suffers a complete inability to carry on a normal life.
7The respondent then sent a letter to the applicant dated May 28, 2019 indicating the following with respect a non-earner benefit (“NEB”):
Although you met the disability for the Non-Earner Benefit, you must meet a complete disability to carry on a normal life as a result of and within 104 weeks after the accident. The injuries identified are soft tissue injuries and we do not believe that these injuries would result in a complete inability to carry on a normal life. Therefore, you are not eligible for this benefit based on the limited medical documentation we have at this time. Please submit any medical documentation for review and consideration. A statement may be conducted to establish your pre-accident and post-accident activities.
8The May 28, 2019 letter also indicated the following:
As your OCF 3 Disability Certificate indicated that you may be eligible for two or more disability benefits (Income Replacement, Non-Earner, or Caregiver Benefit), we will require you to elect/choose which benefit you would like to be considered for. Please be advised that an election is final regardless of any change in circumstances (unless you are deemed to have a catastrophic injury at which time you may choose to receive a Caregiver Benefit if applicable). The OCF-10 Election of Benefits is enclosed for your review and completion.
9On September 26, 2019, the applicant submitted an updated OCF-3. The OCF-3 was again completed by Dr. Stribbell. The OCF-3 states that the applicant is substantially unable to perform the essential tasks of her employment and cannot return to work on modified duties. It also states that she suffers a complete inability to carry on a normal life. Based on this updated OCF-3, the respondent again requested that the applicant complete and submit an OCF-10.
10On or about November 15, 2019, the applicant received a Notice of Examination requesting that she attend five insurer's examinations. The Notice of Examination indicated that the insurer’s examinations would be addressing NEB, IRB and some treatment and assessment plans.
11On or about December 9, 2019, the respondent sent a letter requesting numerous documents pursuant to s.33 of the Schedule including but not limited to "any other relevant medical documentation and/or information available." The letter also indicated the following:
[W]e note that in order to determine your initial entitlement to a benefit we have been awaiting your "completed application" of a specified benefit. As an OCF-10 Election of Benefits form has yet to be received, we had taken the position that you have not met your obligation with formally applying for either an Income Replacement and/or a Non-Earner Benefit.
DISCUSSION
The Election Issue
12The applicant submits that based on her “Application for Accident Benefits” (the OCF-1 dated April 4, 2019 and the original OCF-3 dated May 20, 2019) she is only potentially entitled to an IRB and not a NEB because it is clear from her OCF-1 that she was employed and working at the time of the accident and therefore not eligible for a NEB. She relies on s.12 (1) of the Schedule and MK v. TD General Insurance Company, 2020 CanLII 34500 (ON LAT) (“MK v. TD”) in support of her position. Given this, the applicant takes the position that the respondent’s request for an OCF-10 was inappropriate and not in accordance with s.36 of the Schedule.
13The applicant submits that pursuant to s. 36(4) of the Schedule, the respondent had an obligation to pay the IRB, give notice of the reasons it did not believe she was entitled or request an Insurer’s Examination to determine entitlement, or send the applicant a request under s. 33 of the Schedule.
14I disagree with the applicant’s position. The applicant submitted an OCF-1, and two OCF-3s that indicated that she met the disability test for both a NEB and an IRB. Section 35(1) of the Schedule provides:
If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.
15Section 35 of the Schedule is clear and mandatory. It requires an insurer to notify the insured person of their obligation to elect the benefit he or she wishes to receive when the information provided indicates possible entitlement to two or more specified benefits. As such, where an application indicates possible entitlement to more than one specified benefit, more is required than an OCF-1 and an OCF-3 to “complete” the application for benefits: an OCF-10 is also required.
16Without making an election in such circumstances, the nature of the claim and the benefits being sought were not identified. Absent clarification, it was impossible for the respondent to properly determine which benefit the applicant was applying for. The election was required in order for the insurer to begin the process of adjusting the claim for the elected benefit. Thus, the applicant’s application remains incomplete. In this case, a completed OCF-10 is required for the application to be considered “complete” for the purpose of triggering the obligations set out in s. 36(4) of the Schedule.
17The applicant submits that it would be inappropriate for the Tribunal to consider s. 35 of the Schedule for the purposes of this preliminary issue hearing. I disagree with the applicant’s submission in this regard. Section 36 of the Schedule cannot be read in isolation but must be read harmoniously. To accept the applicant’s submission that an OCF-10 is not required would render s. 35 of the Schedule meaningless.
18The applicant also relies on the Tribunal’s decision in M.K. v. TD which held that an OCF-10 was not required to complete an application for weekly benefits. I find that M.K. v. TD is distinguishable from this case because M.K. v. TD involved no ambiguity as to the applicant’s entitlement to a specified benefit and therefore s. 35 of the Schedule was not engaged. It was clear that the applicant met the two-pronged test for entitlement to an income replacement benefit and was, under s. 12 of the Schedule, not entitled to a non-earner benefit. It was possible for the insurer to begin adjusting the claim for a weekly benefit based on the information provided.
19As a result, I find that the insurer’s request for an OCF-10 in this case was in accordance with s.36 of the Schedule.
The Examination Issue
20The applicant submits that the insurer’s request for an insurer’s examination, prior to initiating an IRB payment, was not in accordance with s. 36 of the SABS because the respondent’s request for an insurer’s examination was made in response to the updated OCF-3 (submitted on September 26, 2019) and not in response to the completed “Application for Accident Benefits” (consisting of the OCF-1 and the OCF-3 dated May 20, 2019). I disagree with the applicant’s position.
21As noted above, where an application indicates possible entitlement to more than one specified benefit, an OCF-10 is required to “complete” the application for benefits. In this case, an OCF-10 has not yet been submitted. As a result, the applicant’s application remains incomplete. In this case, a completed OCF-10 is required for the application to be considered “complete” for the purpose of triggering the obligations set out in s. 36(4) of the Schedule.
CONCLUSION
22For the reasons outlined above, I find that the respondent’s request for an OCF-10 and insurer’s examination was in accordance with s. 36 of the Schedule.
Released: October 22, 2021
Paul Gosio, Adjudicator