Licence Appeal Tribunal File Number: 21-007072/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:
Arshad Hussain
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Arshad Hussain, Applicant
Maria Mikhailitchenko, Counsel
For the Respondent:
Rosalind Eastmond, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Arshad Hussain, the applicant, was involved in an automobile accident on August 20, 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, Intact Insurance Company (“Intact”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the respondent is required to pay benefits with respect to the applicant’s claim pursuant to section 61 of the Schedule?
RESULT
3The respondent is not required to pay benefits with respect to the applicant’s claim pursuant to section 61 of the Schedule.
ANALYSIS
Background
4The applicant was driving a transport truck and trailer eastbound on Highway 17. Two trucks were heading westbound when one truck attempted to overtake the other. This caused the other truck to come over into the applicant’s lane. The applicant attempted to move the vehicle to the shoulder, however, the other truck struck the applicant’s sleeper berth compartment, which caused the applicant’s truck to roll over. The applicant was taken to the hospital where he was examined and discharged. He applied to the Workers’ Compensation Board-Alberta, (“WCB”). The WCB accepted the claim and approved treatment and therapy for the period commencing November 3, 2020 to December 14, 2020.
5The WCB issued multiple payments to the applicant. On November 17, 2020, the applicant sent a letter to WCB advising that he would like to withdraw his application. His counsel returned the cheques to the WCB and advised that they wanted to proceed with Intact Insurance for a motor vehicle accident claim.
6The WCB suspended his wage benefit on the basis of failure to participate in treatment. On January 18, 2021, the WCB wrote to the applicant with respect to the WCB claim. He was informed that he had met the criteria under the WCB policy. The decision to accept the claim was supported by the WCB and legislation under which all of the decisions were made. Further, the WCB issued benefits and services to support the initial entitlement decision that was made. The letter stated that the WCB was the “first player” and was responsible for all work-related claims. The WCB representative took the position that the WCB was independently legislated and without supporting evidence they were unable to overturn the decision to accept the claim and provide the applicant with the letter required for pursuing the insurance claim.
7On March 19, 2021, the WCB advised the applicant that they had transferred the file to the legal department. The WCB divested itself of any legal action and did not hold themselves liable for payment of any costs related to a dispute of whether the legal action can proceed in Ontario. The WCB advised the applicant that he would be required to contact the Workplace Safety and Insurance Board of Ontario to determine the status of all parties and that he would need to inform them that his claim was accepted by the WCB. The letter informed the applicant that the “decision does not change our Customer Service Department’s decision to accept your claim.”
8On April 21, 2021, the WCB responded to the applicant’s inquiry regarding why his claim could not be withdrawn. They informed him that there were no provisions in the Workers’ Compensation Act, RSA 2000, cW-15 or Policy provisions which would allow them to reverse an entitlement decision on a claim that met the criteria listed above at the request of a worker or employer.
The parties’ positions
9The respondent submits that this dispute centres primarily around the narrow issue of whether the applicant is entitled to receive benefits under “any other workers compensation law or plan”, as provided in section 61 of the Schedule. It is the respondent’s position that the applicant continues to be entitled to claim benefits under the WCB as highlighted in the correspondence between him and the WCB. His wages benefit was suspended because he expressed that he did not intend to engage in therapy and not because of overall entitlement to all benefits.
10The applicant did not file any submissions or evidence. I note that all of the parties received the case conference report and order dated December 22, 2022. The case conference report and order outlined all of the submission deadlines. The applicant did not make any request to extend the deadlines to file submissions and evidence and never contacted the Tribunal for any other reason.
Law
Section 61
11Section 61(1) of the Schedule states that insurers are not required to pay accident benefits under the Schedule to those who are entitled to claim workers’ compensation benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”) or any other workers’ compensation law or plan.
12Section 61(5) states that, despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under the Schedule pending resolution of the dispute if, (a) the person makes an assignment to the insurer of any benefits under any workers’ compensation law or plan to which he or she is or may become entitled as a result of the accident; and (b) the administrator or board responsible for the administration of the workers’ compensation law or plan approves the assignment.
The respondent is not required to pay benefits
13Based upon the evidence before me, the applicant continues to be entitled to benefits under the WCB. The accident was a work-related incident, and he met the criteria under the WCB policy. The claim was accepted by the WCB. The applicant was informed that the WCB claim could not be withdrawn. His benefits through the WCB have been suspended because he refused to engage in therapy. However, they were not suspended due to any issues with entitlement. The WCB informed him that he would be entitled to benefits again if he agreed to be an active partner in his recovery and return to work.
14Moreover, I also note that he did not make an application under WSIA. There is no evidence that he completed an assignment. Therefore, the respondent is not required to pay full benefits to him pending the resolution of the dispute.
15As such, I find that the applicant is not entitled to benefits pursuant to section 61 of the Schedule.
ORDER
16I find that the respondent is not required to pay benefits to the applicant because the applicant is entitled to receive benefits under the WCB. The application is dismissed.
Released: September 7, 2023
___________________________
Tavlin Kaur
Adjudicator