Release date: 07/02/2021
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:
Kimberly Carpizo
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Cary Schneider, Counsel
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By was of written submissions
OVERVIEW
1Kimberly Carpizo (“applicant”) was involved in an automobile accident on May 7, 2020 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (“Schedule”).
2Co-operators General Insurance Company (“respondent”) denied benefits including non-earner benefits (“NEB”). The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
3On November 24, 2020 the Tribunal ordered that the preliminary issue below be heard prior to the substantive issues.
PRELIMINARY ISSUE
4The preliminary issue to be decided is:
i. Is the applicant entitled to payment of NEB from June 5, 2020 until the substantive hearing of this matter on the grounds that the respondent failed to comply with the Schedule?
RESULT
5The applicant is not entitled to payment of NEB from June 5, 2020 until the substantive hearing of this matter. The applicant’s substantive entitlement to NEB will determined in a substantive issues hearing held later and is not determined by me for any period in time. The parties may contact the Tribunal to request a case conference regarding substantive entitlement to NEB and the other substantive issues in dispute set out in the Tribunal’s November 24, 2020 Order.
LAW
6Within 10 business days after an insurer receives an NEB Application for Accident Benefits, OCF-1, and a NEB Disability Certificate, OCF-3, the insurer is required by s. 36(4)(a), (b) and (c) of the Schedule to:
a. Pay NEB;
b. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to NEB and, if the insurer requires an examination under s. 44 relating to NEB, advising the applicant of the requirement for an examination; or
c. Send a request to the applicant under s. 33(1) for further information or under s. 33(2) for an examination under oath.
7Section 36(5) of the Schedule provides that if the insurer sends a request to the applicant under s. 33(1) or (2), the insurer shall within 10 business days after the applicant complies with the request, pay NEB or give the applicant the notice described in s. 36(4)(b).
8If the insurer fails to comply with the respective 10 business day time limits in s. 36(4) or s. 36(5), the insurer shall pay NEB for the period starting on the day the insurer received the application and completed disability certificate and ending on the day the insurer gives the s. 36(4)(b) notice if notice is subsequently given.
Applicant’s position
9The applicant submits that the respondent’s notice is in non-compliance with ss. 36(4) and 33 of the Schedule and the respondent’s legal obligation to provide proper medical or any other reasons for its denial of NEB. The applicant seeks an Order under s. 36(6) that the respondent pay to the applicant NEB of $185.00 a week from June 5, 2020 to date and ongoing, with interest, until the respondent complies with the Schedule. The applicant submits in reply that the June 19, 2020 letter from the respondent does not mention that the respondent had received the OCF-3.
Respondent’s position
10The respondent submits that it has complied with s. 36 of the Schedule and properly denied the applicant’s NEB on June 19, 2020 pending receipt of further information which the applicant has yet to provide. The respondent also submits that at the very latest, it complied by letter dated July 10, 2020. The respondent submits the applicant is in non-compliance with s. 33(1) of the Schedule and is not entitled to payment of NEB at this time.
ANALYSIS
Did the Respondent Fail to Comply with the Schedule?
11After considering all of the evidence, submissions and cases put forward by the parties, I find that the applicant has not met her burden of proof to establish that the respondent failed to comply with the Schedule for the following reasons.
12The applicant submitted her OCF-1 June 2, 2020, an OCF-10 electing NEB on June 5, 2020, and an OCF-3 on June 8, 2020 though her treatment facility Promed. As a result, the applicant’s application was complete June 8, 2020. The respondent responded, on June 19, 2020, nine business days after receipt of the completed application. I find this is within the 10 business days allowed for response by s. 36(4).
13I find that the content of the respondent’s letter of June 19, 2020 complies with the requirements of s. 36(4)(b). This letter gave the applicant an explanation of the medical and any other reasons why the insurer does not believe the applicant is entitled to NEB, specifically that the respondent does “…not have sufficient medical information, at this time, to support that the applicant suffers a complete inability to return to her normal activities of living and a claim for…” NEB. Further, this letter also contained a request under s.36(4)(c) for the applicant to provide further information as outlined under s.33. The letter lists the information requested which are records of the family physician and OHIP from May 2019 to present, and an activities of normal living form. The letter specifically refers to section 33 and indicates that if the information is not received by July 6, 2020 then the respondent is not liable to pay NEB in respect of any period during which the applicant failed to provide the requested information. I find nothing in the respondent’s June 19, 2020 letter that is non-compliant with s. 36(4) or lacking in particulars, confusing, unclear, or not written in plain language as argued by the applicant.
14The respondent followed up with a further correspondence in July 2020 advising of the applicant’s non-compliance and that her entitlement to NEB could be reconsidered on receipt of the requested information.
15The applicant also submits that the respondent failed to comply with s. 36 because the June 19, 2020 letter failed to specifically reference the OCF-3. The respondent sent a further letter dated July 10, 2020 specifically acknowledging the OCF-3 and repeating the respondent’s request for information. I find the July 10, 2020 letter from the respondent was not necessary to comply with the s. 36(4) but was a repeat of the respondent’s position from the June 19, 2020 letter.
16Although the applicant argues that the June 19, 2020 letter from the respondent does not mention that the respondent had received the OCF-3, I find this does not indicate any defect in the June 19, 2020 letter. Firstly, there is no requirement in the Schedule that the OCF-3 has to be specifically mentioned in any response sent under s. 36. Secondly, the applicant either knew, should have known or could have asked her own treatment provider Promed when the OCF-3 was submitted to the respondent. Thirdly, the respondent’s receipt of the OCF-3 completed the applicant’s application and started the clock on the 10 business days during which the respondent had to respond under s. 36. This benefitted the applicant and did not prejudice or adversely affect her in any way.
17As the applicant has not provided the documentation requested by the respondent pursuant to s.33 to date, the respondent has not paid NEB. Section 33(6) of the Schedule provides that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s. 33(1) or (2). Section 33(1) paragraph 1 allows the insurer to request “any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit”. I find nothing unreasonable or unnecessary in the respondent’s request for one year pre-accident family physician and OHIP records given that NEB entitlement requires an analysis of the applicant’s pre and post-accident activities. Especially since the OCF-3 submitted by the applicant indicated injuries which appeared to be minor and provided little detail as to the applicant’s inability to perform activities of daily living.
18The applicant submits that she was not required by s. 33 to complete the activities of normal living form that the respondent asked the applicant to complete in it’s June 19, 2020 letter. This form appears similar, but is not identical to, the discontinued OCF-12 and I find that the information requested in it was reasonably requested in this particular case to assist the insurer in determining the applicant’s entitlement to NEB given the information it had on file and given that the that family physician and OHIP records were also requested under s. 33.
19The applicant’s June 5, 2020 letter requesting prepayment for the OHIP and family physician’s records without providing request letters or invoices to support the payment requested is not relevant here. The applicant’s application was not complete until June 8, 2020 and the request for prepayment of the cost of records not does relieve the applicant of the obligation to provide them or result in non-compliance by the respondent by requesting these records. Further, it appears that payment has now been made to the applicant for the OHIP records which have still not been provided by the applicant.
20The applicant also argues that she has requested the records which should require the respondent to pay NEB in the meantime. No persuasive authority was put forward by the applicant for this proposition. Even if she has made efforts to obtain the medical records, s. 33(1) requires the applicant to “provide” them to the respondent, not merely request them. There has been no compelling evidence put forward by the applicant that they do not exist or are not obtainable from either OHIP or her family physician’s office.
21On a plain reading of s. 33(6) I see no basis for compelling the respondent to pay NEB in circumstances where the applicant has not provided information reasonably requested under s. 33(1) 1. which clearly puts the onus on the applicant to provide the information.
ORDER
22For the reasons above, the applicant is not entitled to payment of NEB from June 5, 2020 until the substantive hearing of this matter. The applicant’s entitlement to NEB will determined in a substantive issues hearing held later and is not determined by me for any period in time.
23The parties may contact the Tribunal to request a case conference regarding substantive entitlement to NEB and the other substantive issues in dispute set out in the Tribunal’s November 24, 2020 Order.
Date of Issue: July 2, 2021
Avril A. Farlam, Vice Chair