Licence Appeal Tribunal File Number: 21-004711/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:
Mohammad Qayumi
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR: Ian Maedel
APPEARANCES:
For the Applicant: Yalda Aslamzada, Counsel
For the Respondent: Aimee Draper, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohammad Qayumi, the applicant, was involved in an automobile accident on January 31, 2019, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 28, 2019 to January 31, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to an NEB of $185.00 per week from August 28, 2019 to November 4, 2019, plus applicable interest. The applicant is not entitled to an NEB for any other period.
Preliminary Issue
An award pursuant to s. 10 of Regulation 664 is not in dispute
4As part of his written submissions, the applicant claims he is entitled to an award pursuant to s. 10 of Regulation 664 due to the respondent’s unjustifiable withholding of benefits.
5The issue of an award was never added prior to the written hearing date. Had the applicant wished to add this issue prior to the hearing, it could have been done at the case conference or by way of a timely Notice of Motion in advance of the written hearing. Instead, the applicant waited to attempt to add this issue as part of his written submissions.
6Adding the issue as part of the written hearing submissions is contrary to procedural fairness laid out in Rule 3.1(a) of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (“Common Rules”).
7Given the potential unfairness to the respondent, I am unwilling to add the issue of an award to this hearing.
ANALYSIS
The applicant is entitled to a NEB
8I am persuaded the applicant is entitled to a NEB for the period from August 28, 2019 to November 4, 2019, pursuant to s. 36(4) of the Schedule.
9This matter turns on the notice requirements in s. 36 of the Schedule. The applicant submits the respondent has failed to provide adequate notice of the denial of the NEB at issue and is therefore entitled to payment of this specified benefit pursuant to s. 36(6). I agree in part.
10Relevant to this dispute, section 36(4) of the Schedule states that, within 10 business days after the receipt of the application and a completed disability certificate, the insurer shall pay the specified benefit. Alternatively, it shall give the applicant notice explaining the medical and other reasons why the insurer requires an examination pursuant to s. 44 of the Schedule, or send a request to the applicant for additional information pursuant to s. 33.
11The applicant submitted a Disability Certificate (“OCF-3”) on August 28, 2019. This triggered the applicant’s application for the NEB at issue, pursuant to ss. 36(2) and 36(3). The respondent never made a request pursuant to ss. 33(1) or (2), which would suspend the application of ss. 36(4)(a) and (b).
12I am not satisfied the respondent’s Explanation of Benefits (“EOB”) dated September 9, 2019 meets the requirements of s. 36(4) by providing a clear and unequivocal denial of the benefit, together with the medical and other reasons for the decision. This correspondence failed to identify the NEB at issue and indicated “the disability period appears to be inconsistent with the diagnosis or mechanism of injury”. In my view, this notice failed to provide adequate medical or other reasons so that an unsophisticated party could understand the denial of the benefit and make an informed decision in response.
13The correspondence dated September 9, 2019 also included notice of two insurer’s examinations (“IEs”). The applicant attended these examinations and did not dispute whether the request for these IEs was more than reasonably necessary pursuant to s. 44(1) nor whether the notice requirements were satisfied under s. 44(5).
14However, the subsequent EOB dated November 4, 2019 is a compliant notice pursuant to s. 36(4), as it clearly and unequivocally provides the medical and other reasons for the denial of the NEB in dispute. Specifically, it lists the NEB in dispute, the complete inability test threshold, which was in addition to pinpoint references to the opinions of Dr. Weisleder and Ms. Elliott, who concluded that the applicant did not meet the disability test for an NEB. The November 4, 2019 notice cures the previous defective notice dated September 9, 2019.
15Thus, there was a period of non-compliance pursuant to s. 36(4) of the Schedule between the submitted date of the OCF-3, August 28, 2019 and the EOB dated November 4, 2019. Pursuant to s. 36(6), the respondent shall pay the NEB at $185.00 per week for this period.
16The entirety of the applicant’s submissions are predicated on non-compliance with s. 36 of the Schedule. Otherwise, the applicant has failed to meet his onus in establishing his entitlement to NEB. He tendered no medical evidence other than the OCF-3 dated August 28, 2019, nor any expert reports to establish he suffered a complete inability to carry on a normal life as a result of, and within 104 weeks of the accident pursuant to s. 12(1). As a result, he is not entitled to an NEB outside of the period of non-compliance.
17In consideration of s. 36(4) and the period of non-compliance between August 28, 2019 and November 4, 2019, I am satisfied that the respondent shall pay the NEB at $185.00 per week for this period pursuant to s. s36(6).
The applicant is entitled to applicable interest
18The applicant is entitled to applicable interest related to the NEB between August 28, 2019 and November 4, 2019 pursuant to s. 51 of the Schedule.
ORDER
19I find that:
i. The applicant is entitled to an NEB of $185.00 per week from August 28, 2019 to November 4, 2019, plus applicable interest.
Released: July 25, 2023
__________________________
Ian Maedel, Vice-Chair