Licence Appeal Tribunal File Number: 20-011497/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:
Julie Ruchlemer
Applicant
and
TD General Insurance Company
Respondent
MOTION DECISION
ADJUDICATOR: Tavlin Kaur
APPEARANCES:
For the Applicant: Applicant - Did not attend Frank Grande, Counsel
For the Respondent: Crystal Krandel, Adjuster Arfa Saeed, Counsel Harley Kruger, Counsel
LAT Observers1: Alla Kadysh, Amarjeet Gill, Janet Hueglin Hartwick Adjudicators
Heard by Videoconference: August 3-4, 2022
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in an automobile accident on September 16, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)(‘Schedule’).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2A three-day videoconference hearing was scheduled to take place from August 3 to 5, 2022.
3On July 20, 2022, the respondent filed a preliminary issue motion with the Tribunal. The respondent sought an order to dismiss the application as it is statute barred pursuant to sections 5(1)(2)(i) and (ii), 36(2), 36(3), 5(1) and 6 of the Schedule. In the alternative, the respondent sought an order that the applicant's claim for income replacement benefits (‘IRB’) from September 23, 2015 to March 13, 2018 be dismissed as it is statute barred pursuant to sections 36(2), 36(3) and 5(1) of the Schedule.
4On July 29, 2022, the applicant filed her submissions in response to the preliminary issue motion. Within her submissions, she also raised the argument that the respondent did not comply with the notice obligations under section 32 of the Schedule.
5On August 3, 2022, the applicant’s counsel informed the Tribunal that the applicant was unable to attend due to a death in the family. He sought an adjournment so that she could participate. The Tribunal determined that the preliminary motion would proceed, but the substantive issue hearing would be adjourned to a later date pending the motion decision.
6On August 4, 2022, the applicant’s counsel withdrew his argument regarding whether the respondent complied with its notice obligations under Section 32 of the Schedule. The Tribunal proceeded with the motion on the preliminary issue raised by the respondent.
PRELIMINARY ISSUE
7The issue to be decided by the Tribunal is:
- Is the applicant precluded from proceeding with this application because she did not provide a disability certificate (‘OCF-3’) that supports her claim for an IRB within 104-weeks of the subject accident?
RELEVANT LEGISLATION
8Section 5(1)2 of the Schedule states that self-employed persons are entitled to an IRB if they experience “a substantial inability to perform the essential tasks” of their pre-accident self-employment “as a result of and within 104 weeks after the accident”.
9Section 32 describes obligations that both sides have when an insured person applies for a benefit. Specifically, sections 32(1) and (2) state:
(1) A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
(2) The insurer shall promptly provide the person with,
(a) the appropriate application forms;
(b) a written explanation of the benefits available;
(c) information to assist the person in applying for benefits; and
(d) information on the election relating to income replacement, non-earner and caregiver benefits, if applicable.
10Section 36 provides guidance on how to apply for specified benefits, including an IRB. Sections 36(2) and (3) require the submission of an OCF-3 prior to the payment of a specified benefit:
(2) An applicant for a specified benefit shall submit a completed disability certificate with his or her application under section 32.
(3) An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.
Parties’ positions
Respondent’s position
11The respondent submitted that the applicant is not entitled to receive the benefit for any period prior to the receipt of the completed OCF-3 on March 13, 2018 as it is 129 weeks from the date of the accident. The respondent argued that the applicant submitted the completed OCF-1 on or about December 11, 2015, the completed OCF-3 supporting the substantial inability test on March 13, 2018, and the completed OCF-2 on December 7, 2018. Moreover, the Respondent has no evidence in support of the Applicant's alleged substantial inability to work as a result of the accident, and within the 104-week period of September 16, 2015 to September 13, 2017.
Applicant’s position
12The applicant submitted that a completed OCF-3 dated October 6, 2015 was provided to the respondent. The respondent acknowledged receipt of the OCF-3 on October 22, 2015 and therefore was within the 104 weeks of the accident. The respondent did not request any further information from Dr. Greenspan or an updated OCF-3. Therefore, the claim for the IRB is not statute-barred.
ANALYSIS
13I find that the applicant provided an OCF-3 before the 104-week mark. The application can proceed to a three-day videoconference hearing.
14The letter dated October 22, 2015 confirmed that the respondent was in possession of the OCF-3. In fact, the respondent reviewed the OCF-3 and determined that the applicant was not eligible for the IRB or NEB. In the same letter, the applicant was informed of her right to dispute the respondent’s determination.
15At the hearing, the respondent’s counsel was asked about the OCF-3 dated October 6, 2015. While it was acknowledged that the OCF-3 was submitted a few weeks after the subject accident, the respondent’s counsel was of the view that the matter was statute barred because the applicant’s chiropractor noted in part 6 of the OCF-3 that she did not meet the substantial inability test. Even though the applicant provided a complete OCF-3 within 104-weeks of the accident, she failed to submit a completed OCF-3 claiming an IRB until approximately 129 weeks after the accident.
16Pursuant to sections 36(2) and (3) of the Schedule, an insured person must submit a completed OCF-3 before they can request a specified benefit. My interpretation of sections 36(2) and (3) is that an applicant must submit a completed disability certificate along with her application. These sections do not make any reference to whether or not the applicant must meet the substantial inability test.
17The respondent relies upon JV vs. TD Insurance Meloche Monnex, 2019 CanLII 110091, and C.G. vs. Pembridge Insurance Company, 2020 CanLII 51276 in support of its position that a complete claim for an IRB must be made within 104 weeks. In both cases, the OCF-3 was submitted after 104 weeks. This case is distinguishable as the applicant did submit a completed OCF-3 within 104 weeks.
18In my view, the respondent’s argument regarding Dr. Greenspan noting that she did not meet the substantial inability test in the OCF-3 is something that can be addressed at the substantive issue hearing. Preliminary issues are very technical in nature. The question here is whether or not she submitted the OCF-3 within the 104-week mark. Based on the evidence before, I find that the applicant did comply with the requirements under sections 36(2) and (3) of the Schedule.
CONCLUSION
19The respondent’s motion is denied.
20The applicant can proceed with her appeal.
21The Tribunal will contact the parties within 45-60 days to schedule a three-day substantive issue hearing.
Released: August 24, 2022
Tavlin Kaur
Adjudicator