Bewes v. TD General Insurance Company, 2023 CanLII 67897

Citation: Bewes v. TD General Insurance Company, 2023 ONLAT 22-009538/AABS – PI

Licence Appeal Tribunal File Number: 22-009538/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:

Veronica Bewes

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Adriano Pranzitelli, Counsel

For the Respondent:

Bonnie Redden, Claims Adjuster

Rui (Ricky) Shen, Counsel

Heard by way of written submissions

OVERVIEW

1Veronica Bewes, the applicant, was involved in an automobile accident on September 15, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company (“TD”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2At the case conference, the Tribunal ordered the following preliminary issues to be decided:

1. Is the applicant barred from proceeding with their claim for income replacement benefits as no completed OCF-3 (Disability Certificate) was submitted within 104 weeks from the date of the accident?

2. Is the applicant barred from proceeding with their claim for medical/rehabilitation/attendant care benefits as the limit of $65,000.00 has been exhausted and the applicant has not submitted an OCF-19 (Application for Determination of Catastrophic Impairment)?

3The parties agree that issue #2 is no longer in dispute. As such, the Tribunal will make a determination on issue #1.

RESULT

4The applicant is barred from proceeding with her application.

ANALYSIS

Background

5On October 29, 2020, the respondent sent a letter to the applicant which acknowledged the receipt of her Employer’s Confirmation Form. She was advised that the respondent is unable to determine her eligibility for the IRB because she did not submit a disability certificate (“OCF-3”). On November 5, 2020, the respondent received an OCF-3. Part 5 to 10 of the OCF-3 was blank. It was not filled out by a health practitioner.

6On November 9, 2020, the respondent sent a letter to the applicant requesting that she submit an OCF-3 completed by a health practitioner. A similar letter was sent to the applicant on July 7, 2021. These letters made it clear that no income replacement benefits would be payable until a completed OCF-3 from a healthcare practitioner had been submitted.

7On October 17, 2022, the OCF-3 was submitted by the applicant’s family physician. This was after 109 weeks following the accident. The completed OCF-3 dated October 3, 2022, indicated that the applicant is "substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident".

Legislation

8Section 32(5) of the Schedule requires an applicant to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. Section 36(2) specifies that an applicant seeking a specified benefit, e.g., an IRB or NEB, shall submit a completed disability certificate with his or her application under section 32. Therefore, the correct limitation period to submit the OCF-3 along with the OCF-1 is 30 days after receiving the application forms from the respondent, as provided by section 32.

9In order for an OCF-3 to be considered complete, it must be filled out and signed by a health practitioner of the applicant's choice. Once the insurer receives the completed OCF-3, it has 10 business days to either pay the benefit, ask for a section 44 assessment or a request for more information under section 33.

10Section 36(3) states “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”.

11Section 66 of the Schedule states that a disability certificate under sections 21, 36 or 37 of the Schedule shall be in a form approved by the Chief Executive Officer. Section 67(1)(a) of the Schedule states that any document required by section 66 of the Schedule to be in a form approved by the Chief Executive Officer and any other document specified in a Guideline is duly completed and includes all information required by the Schedule to be included in it if every field not identified on the form as an optional field is completed in accordance with section 67(2) of the Schedule.

12Section 34 provides that a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.

13Section 55(1) provides that the applicant shall not apply to the Tribunal if he/she “has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by [the Schedule].”

Parties’ position

14The applicant submits that the Tribunal has confirmed that the only section in the Schedule that describes what is meant for a form to be considered “complete” is section 67 and “it does not apply to disability certificates”. Section 67 of the Schedule only applies to documents that are specified in a Guideline and required to be delivered to an insurer to whom the Guideline applies. Disability certificates are not included in that class of documents.

15The respondent submits that section 67 of the Schedule provides that any document that is required by section 66 to be in a form approved by the Chief Executive Officer must be “duly completed” in every field not identified as an optional field. An OCF-3 is included under section 66 of the Schedule. As Part 5 to 10 of an OCF-3 is not "optional", it must therefore be duly completed by a health practitioner pursuant to section 67 of the Schedule.

16I am not persuaded by the applicant’s argument. Section 36 of the Schedule sets out what an applicant must submit to an insurer to claim IRBs. It states:

36. (1) In this section and section 37, “specified benefit” means an income replacement 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.

17Section 67(1) provides guidance as to when a form is considered completed:

Any document that is required by section 66 to be in a form approved by the Chief Executive Officer and to which subsection 64 (7) applies and any other document specified in a Guideline applicable for the purposes of this section is duly completed and includes all information required by this Regulation to be included in it if,

(a) every field not identified on the form as an optional field is completed in accordance with subsection (2); and

(b) if any field on the form that is identified as an optional field is completed, it is completed in accordance with subsection (2). O. Reg. 34/10, s. 67 (1); O. Reg. 123/19, s. 9.

18The applicant is relying on 16-003897 v TD General Insurance Company, 2017 CanLII 69447 (ON LAT) where the Tribunal found section 67 of the Schedule only applies to documents that are specified in a Guideline and required to be delivered to an insurer to whom the Guideline applies. It was determined that disability certificates are not included in that class of document.

19I have reviewed the case as well as the Health Claims for Auto Insurance Guideline, Superintendent’s Guideline No. 02/18 (“Guideline”). On page 4, there is a subheading that states “Documents that must be delivered to the CPA. It further states that “the following documents are specified for the purpose of s. 64(7) of the SABS. Each of these documents must be delivered to the CPA (and not directly to the insurer) unless otherwise specified in this Guideline, when delivered by a Participating Facility to a Participating Insurer.” The OCF-3 is listed under this subheading. It is stated that, “In addition, regardless of whether or not the Participating Facility is a Service Provider, if the Participating Facility is properly enrolled in HCAI it can continue to submit the OCF-3 in the usual manner (not through the CPA).” In my view, section 67 does apply to the OCF-3.

20I have reviewed the OCF-3 dated October 1, 2020. The OCF-3 is a form that was approved by the Superintendent. Part 5 to 10 of the OCF-3 was not filled out by a health practitioner. None of these fields have been identified as an optional field and therefore, should have been filled out by her health practitioner. I find that the October 1, 2020 OCF-3 is incomplete. On October 17, 2022, the OCF-3 submitted by the applicant’s family doctor was complete.

21Moreover, I am not persuaded by the applicant’s position that due to the plethora of medical evidence and documentation provided to the respondent throughout the 104-week period post-accident, she has demonstrated that she suffered a substantial inability to perform the tasks of their employment within 104 weeks post-accident and is entitled to bringing forth a claim for an IRB. In my view, the Schedule is very clear that the applicant must submit a completed OCF-3. This is a precondition. There is nothing in the Schedule that suggests that an applicant can bypass this requirement. As noted in JV, any consumer protection afforded by the Schedule does not relieve the applicant from her duty to comply with the law or to meet the requirements for claiming benefits.

22I also find Katsaros v TD Insurance Meloche Monnex, 2022 CanLII 45263 (ON LAT) and D.W. v The Co-Operators, 2018 CanLII 8092 (ON LAT) to be distinguishable. In those cases, the applicants complied with the statutory requirement unlike in the case before me. I am more persuaded by JV v TD Insurance Meloche Monnex, 2019 CanLII 110091 (ON LAT) and C.G. v Pembridge Insurance Company, 2020 CanLII 51276 (ON LAT) because the applicants in those cases did not submit a completed OCF-3 in accordance with section 36 and were found to be barred from claiming the IRB.

23I find that the applicant failed to meet the statutory requirements and is not entitled to claim the IRB. The applicant did not provide any submissions or evidence to refute this fact. While section 34 of the Schedule allows an extension of a deadline if there is a reasonable explanation for the delay, the applicant has not offered one.

24Therefore, I find that the applicant has failed to do so and according to the Schedule, the respondent is not liable to pay for the income replacement benefit for any period before a completed OCF-3 is submitted.

ORDER

25The applicant’s claim for IRB is dismissed.