Licence Appeal Tribunal File Number: 20-011733/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:
Chukwudumebi Ozor
Applicant
and
Aviva Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Jacqueline Ozor, Counsel
For the Respondent:
Kimberley Tye, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, C.O., was involved in an automobile accident on August 26, 2018, and sought benefits, including a Non-Earner Benefit (“NEB”), from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The NEB issue was added at the case conference, which gave rise to this preliminary issue. Aviva raised the preliminary issue on the basis that C.O. did not qualify for a NEB.
PRELIMINARY ISSUE
2As per the Tribunal Order of March 25, 2021, the preliminary issue is as follows:
a. Is C.O. barred from proceeding with her claim for non-earner benefits as she failed to submit an application for the benefit within the times prescribed by the Schedule?
ISSUES IN DISPUTE
3The substantive issues in dispute are as follows:
a. Is the applicant entitled to $2,754.37 for chiropractic services from Doctor Med Rehab Centre proposed by Dr. Panahloo, chiropractor, in a treatment plan (OCF-18) dated February 4, 2019?
b. Is the applicant entitled to $2,612.47 for chiropractic services from Doctor Med Rehab Centre proposed by Dr. Panahloo, in an OCF-18 dated June 19, 2019?
c. Is the applicant entitled to $2,013.44 for a social work assessment from Doctor Med Rehab Centre proposed by Dr. Panahloo in an OCF-18 dated November 25, 2019, denied on December 30, 2019?
d. Is the applicant entitled to $2,865.53 for chiropractic services from Promed Rehab Clinic proposed by Harry Grigoropoulos, chiropractor, in an OCF-18 dated May 29, 2020, denied on June 16, 2020?
e. Is the applicant entitled to $3.069.24 for chiropractic services from Islington Chiro proposed by Dr. Agyemang in an OCF-18 dated October 21, 2020?
f. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
g. Is the applicant entitled to interest on any overdue payment of benefits?
FINDING
4C.O.’s claim for a NEB is statute barred under s. 12 due to her failure to establish entitlement to the benefit.
5The parties shall contact the Tribunal within 30 days of the release of this preliminary issue decision to schedule a resumption of the case conference.
ANALYSIS
Disability Certificates confirm entitlement to an income replacement benefit
6Section 12 of the Schedule provides that an insurer shall pay for a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks. Section 12 further provides that entitlement to a NEB must satisfy the condition that the insured, “does not qualify for an income replacement benefit.” [emphasis added]
7The process for claiming NEBs is outlined in section 36 of the Schedule. As it relates to this matter, section 36(2) provides that an applicant seeking NEBs shall submit a completed disability certificate with their application.
8Aviva submits that the Disability Certificates (OCF-3s) that C.O. relies on confirms that she does not qualify to apply for the NEB. It further posits that C.O. is, in fact, entitled to claim an income replacement benefit. In Aviva’s submission, entitlement to an income replacement benefit disqualifies C.O. from entitlement to the NEB. I agree.
9Eligibility for an income replacement benefit is set out in s. 5 of the Schedule. C.O. is entitled to claim an income replacement benefit if she was working at the time of the accident, or if she had been employed for 26 out of the previous 52 weeks. The evidence establishes that C.O. was working at Extreme Pita and returned to that job two days after the accident. She had also worked 26 out of the previous 52 weeks. Thus, she meets the eligibility criteria for an income replacement benefit.
10C.O. is statute barred from claiming entitlement to a NEB by the provisions of s. 12 which states that she is not entitled to an NEB if she qualifies for an IRB.
11My decision is based on the following evidence:
a. OCF-3 dated October 15, 2018 –In response to whether she worked at least 26 weeks of the previous 52 weeks preceding the accident, the OCF-3 indicates “yes.” Also, the OCF-3 indicates she is substantially unable to perform the essential tasks of her employment at the time of the accident;
b. OCF-3 dated March 9, 2020 –In response to working at least 26 weeks of the previous 52 weeks before the accident, Dr. Mazzuca affirmed that she did; and
c. C.O. worked at Extreme Pita prior to the accident. She returned to work one-week post-accident for two days.
12Although C.O. directs me to the Ontario Court of Appeal decision in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, she simply relies on it in support of the test of eligibility for NEB, as it applies to whether she suffers a complete inability to carry on a normal life. C.O. does not direct me to any argument or other corroborative evidence that the OCF-3s support that she is entitled to a NEB.
13What I find unhelpful for her position, is that her submissions, which are not evidence, largely focus on her allegations that she suffers a complete inability to carry on a normal life. This preliminary issue focuses on the essential first step in the NEB claim process, namely, is C.O. precluded from making a claim for the benefit in the first place. In short, the answer is yes.
14I do not find that C.O. persuasively contests Aviva’s determination that the OCF-3s do not support a claim for NEB. Further, the evidence supports that she may in fact qualify for an IRB, for example:
a. She does not suffer a complete inability to carry on a normal life, she was working at the time of the accident, and returned to work;
b. Aviva, in its proper November 1, 2018 and March 16, 2020 notices of denial, confirmed that C.O. is not entitled to a NEB; and
c. Under s. 36 (2) and (3) of the Schedule, the requirement to submit a “completed” disability certificate includes applying for the appropriate specified benefit that an applicant may be entitled to, which, in this case, is an IRB.
15For the reasons set out above, I find that C.O. is statute barred from proceeding with her NEB claim due to ineligibility under s. 12(3)(d).
ORDER
16C.O.’s claim for a NEB is dismissed as it is statute barred under s. 12(3)(d).
17The parties shall contact the Tribunal within 30 days of the release of this preliminary issue decision to schedule a resumption of the case conference in order to address the substantive issues in dispute.
Released: November 7, 2022
__________________________
Derek Grant
Adjudicator