Citation: Moga v. Security National Insurance Company, 2023 ONLAT 21-009822/AABS

Licence Appeal Tribunal File Number: 21-009822/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:

Tiberiu Moga

Applicant

and

Security National Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Ryan Turner, Counsel

For the Respondent:

Ken Yip, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Tiberiu Moga (“T.M.”), was involved in an automobile accident on July 31, 2017, and sought benefits from the respondent, Security National, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). T.M. applied for benefits, including post-104-week income replacement benefits (“IRBs”) and a designation that he sustained a catastrophic impairment (“CAT”). Security National denied the IRB on the basis that T.M. returned to work. Security National raised a preliminary issue by way of a Motion Order dated May 3, 2022.

PRELIMINARY ISSUE

2The preliminary issue to be determined is as follows:

a. Is T.M. ineligible from receiving an IRB due to s. 5 of the Schedule?

3A videoconference hearing is currently scheduled for March 20-24, 27-31, April 3-4, 2023, in this matter to address substantive issues in dispute.

RESULT

4I find that T.M. has not, on a balance of probabilities, satisfied his onus to establish that he is eligible to receive an IRB.

BACKGROUND

5The parties agree that a Disability Certificate (“OCF-3”) dated August 2, 2017, confirms that T.M. returned to work. The parties also agree that the OCF-3 supports entitled to both an IRB and non-earner benefit (“NEB”). In a letter dated August 24, 2017, Security National denied the IRB on the basis that T.M. confirmed on August 3, 2017 that he returned to his regular work hours and duties. According to Security National, in a letter dated September 19, 2017, it confirmed that based on a telephone conversation on September 15, 2017, T.M. decided to claim an NEB and not an IRB, as he returned to work and did not suffer a loss of income. Security National paid the NEB from September 1, 2017 to December 15, 2017 at $185.00 per week.

ANALYSIS

Is T.M. eligible to receive an IRB?

6Section 5 of the Schedule sets out the parameters of eligibility for an IRB. In order to be entitled, an insured person must either be employed at the time of the accident, or, if not employed, they must have either worked for at least 26 weeks during the 52 weeks before the accident or must be receiving employment insurance benefits. The onus remains on T.M. to prove, on a balance of probabilities, that he meets the eligibility criteria in order to be entitled to receive an IRB.

7On the evidence, I find that T.M. is not eligible to apply for an IRB.

8On a plain reading of s. 5(1)(i), an insured must be employed at the time of the accident and suffer a substantial inability to perform the essential tasks of that employment. The evidence shows, and T.M. does not deny, that the OCF-3 indicates he returned to work on or about August 3, 2017. The evidence further indicates, and is again not disputed, that T.M. continued to work until he was let go due to work stoppage/shortage, which is not related to an inability to perform the tasks of his employment as a result of an accident.

9Section 5(1) of the Schedule provides that an insurer shall pay if the insured person satisfies one or both of the criteria, one of which is s. 5(1)(i) discussed above.

10T.M.’s position on the preliminary issue is that the Tribunal is not asked to determine if he is entitled to an IRB or for what period (whether pre-or post-104 IRBs), but whether he is eligible to apply for the benefit. Security National’s position is that there is no evidence that T.M. meets the test for a pre-104-week IRB, which is the eligibility requirement to claim post-104-week IRBs.

11I find that the eligibility requirements have not been satisfied, therefore whether T.M. meets the pre- or post-104-week test is irrelevant. I was not directed to an Election of Income Replacement, Non-Earner or Caregiver Benefit form (OCF-10), so it is unclear if an OCF-10 was completed and an election made.

12As noted in paragraph 5 above, T.M. made a verbal election that he was seeking a NEB. He is not arguing that he did not receive NEB payments for the period of September 1, 2017 to December 15, 2017 at $185.00 per week. Further, there is no dispute that he returned to work. Therefore, it is unclear, on what basis, the grounds he relies on to determine whether he is eligible to claim an IRB.

13The requirements under s. 5 are that an insured must satisfy specific criteria, and where one or both conditions are not met, there is no basis for eligibility. There is no evidence to refute that the OCF-3 noted T.M.’s return to work. Similarly, he self-reported to the insurer examination (“IE”) assessors about the status of his post-accident employment, notably:

a. A December 5, 2017 physiatry IE with Dr. Hosseini – T.M. reported he did not take time off work following the accident. Further, he continues to work similar hours and duties following the accident; and

b. An April 25, 2018 s. 25 neurological assessment with Dr. Jensen – T.M. reported that he works from home and was able to avoid taking time off from work. Further, there have been no adverse work performance evaluations. Dr. Jensen noted that with respect to his injuries and deficits, T.M. does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

14Under s. 5, the requirement is that an insured suffered a substantial inability to perform the essential tasks of their employment. It stands to reason that an individual who did not take any time off from their employment would not be eligible to receive a benefit that mandates such a stipulation. Further, I was not provided with jurisprudence to suggest that he can elect and then receive payment for a specified benefit and then later claim entitlement to the other one.

15T.M.’s post-accident employment has not established that he meets the basic requirement of eligibility. Therefore, he cannot be eligible to receive a benefit he does not satisfy the test for.

CONCLUSION

16T.M. has not established on a balance of probabilities that he is eligible to apply for an IRB.

ORDER

17The videoconference hearing in this matter will proceed as scheduled to address the substantive issues in dispute, which shall not include the IRB issue.