Licence Appeal Tribunal File Number: 22-009727/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:
Iboro-Obong Ekefre
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Michael Ferrante, Paralegal
For the Respondent:
Shannon Mulholland, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Iboro-Obong Ekefre, the applicant, was involved in an automobile accident on December 13, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, TD Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a Non-Earner Benefit (“NEB”) in the amount of $185.00 per week from January 16, 2022, and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
4I find that the applicant is not entitled to a NEB from January 16, 2022, and ongoing.
5I find that the applicant is not entitled to interest.
ANALYSIS
The applicant is not entitled to a NEB
6I find that the applicant is not entitled to a NEB for the period from January 16, 2022, and ongoing, and that the respondent has complied with s. 36(4) of the Schedule. The applicant claims entitlement to a NEB based on procedural factors only and has not provided any specific submissions on his substantive entitlement to NEBs.
(a) Respondent’s compliance with s. 36(4) of the Schedule
7Section 36(4) of the Schedule sets out the particulars that must be included in the insurer’s denial letters when it decides the applicant does not meet the test for specified benefits. It states that within 10 business days after an insurer receives an application and a completed Disability Certificate (“OCF-3”), the insurer shall:
i. pay the specified benefit;
ii. give the applicant notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
iii. send a request to the applicant under s. 33(1) of s. 33(2).
8Should the requirements outlined in s. 36(4) of the Schedule not be met, s. 36(6) of the Schedule states:
If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.
9The applicant submits that he is disputing his entitlement to a NEB strictly based on the respondent’s non-compliance with s. 36(4) of the Schedule. He submits that he submitted his Application for Accident Benefits (“OCF-1”), Disability Certificate (“OCF-3”) and Election of Benefits (“OCF-10”) supporting his entitlement to a NEB to the respondent. He further submits that the respondent provided letters dated January 26, 2022, and February 23, 2022, that contained a boilerplate response without proper medical reasons for the denial, which is non-compliant with the requirements of s. 36(4) of the Schedule.
10The respondent submits that it has provided sufficient reasons for its denial of the NEB pursuant to s. 36(4)(b) of the Schedule and that the specified benefit is not payable. The respondent submits that its denial of January 26, 2022, complied with s. 36(4) of the Schedule. Within 10 days of receiving the OCF-1 and the completed OCF-3, it provided the applicant with notice explaining its denial of his entitlement to a NEB. It stated the reason for its denial as, “Because you are eligible for an Income Replacement Benefit, you are not entitled to a Non-Earner Benefit.” In addition, it advised the applicant of the dispute process available to the applicant if he disagreed, as well as information regarding the limitation period to dispute the denial. The respondent further submits that it is not required to provide a medical reason for the denial of a specified benefit if a medical reason was not the basis for the denial.
11I find that the respondent’s denial of the applicant’s entitlement to a NEB, was valid under the Schedule.
12A key to understanding the dispute is found in the various statements that the applicant made in his initial applications to the respondent that formed the basis for their correspondence that he was entitled to an IRB.
13The applicant submitted an OCF-1 to the respondent dated January 7, 2022. In the OCF-1 he stated that he was “employed and working” in Part 5. In Part 8 he identified his employer as AYSP and having been employed since January 2021 to present. He noted that his injuries prevented him from working from December 13, 2021, to December 17, 2021. He also submitted an OCF-3, dated December 18, 2021. The OCF-3 stated that the applicant was working at the time of the accident and suffers a substantial inability to perform the essential tasks of his employment. It notes that he can return to work on modified hours and/or duties and he is back to work on a trial basis. The OCF-3 further notes that he also suffers a complete inability to carry on a normal life.
14Based on the above information, the respondent sent the applicant a letter dated January 26, 2022, stating that he was entitled to an IRB. It further states that “because you are eligible for an Income Replacement Benefit, you are not entitled to a Non-Earner Benefit”. I note that in addition to denying entitlement to a NEB, the January 26, 2022 letter also sets out the limitation period for bringing an appeal of its decision and the steps necessary to file an appeal.
15On February 4, 2022, the applicant filed an OCF-10 electing to receive a NEB. By letter dated February 23, 2022, the respondent again reiterated that “Because you are eligible for an Income Replacement Benefit, you are not entitled to a Non-Earner Benefit”. It stated that “there is no section of the Statutory Accident Benefits Schedule allowing you to make an election.” It advised that he was entitled to an IRB if he sustained an income loss and that it was waiting on his Employer’s Confirmation of Income Form and pay stubs to substantiate any loss of income.
16I find the respondent’s letters of January 26, 2022, and February 23, 2022, provided a clear and unequivocal denial of the NEB and provided a description of the dispute resolution process. The letters informed the applicant that the reason for the denial of his claim for a NEB was because he was eligible for the IRB. I find that the respondent was not required to state its position on the applicant’s medical eligibility as that was not the basis for its determination. I do not find the respondent’s denial was a “boilerplate” response.
17I rely on the decision, referred to by the respondent, of the Court of Appeal in Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78, which held that a medical reason for a denial does not have to be provided if there is no medical basis for the denial at issue. The Court of Appeal considered the adequacy of the reasons provided for stoppage of the claimant’s weekly IRB. The insurer advised that the benefit would be stopped because the claimant returned to work.
18I acknowledge that based on the decision in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, an applicant may be entitled to a NEB despite being employed at the time of the accident. I note that the OCF-3 noted that the applicant suffered both a substantial inability to engage in his pre-accident employment and a complete inability to carry on his pre-accident activities. Therefore, the respondent was required to address entitlement to both benefits which it did. It found that the applicant was entitled to an IRB and therefore was not entitled to a NEB.
19I find the decision referred to by the respondent, in Lakshman v. Belair Direct Insurance Company, 2023 CanLII 72657 (ON LAT), persuasive. The applicant submitted that the respondent’s denial of the NEB was insufficient in that it failed to provide “medical reasons” but instead denied the NEB because the applicant was working at the time of the accident. Adjudicator Stephanie Kepman disagreed and found that the respondent’s denial of the NEB on the basis that the applicant was working at the time of the accident was valid. She noted that the Court of Appeal found that qualifying for an NEB while employed is a rare occurrence.
20For the reasons stated above, I find that the applicant has not proven entitlement to a NEB due to the respondent’s non-compliance with s. 36(4) of the Schedule.
(b) Requirement for an OCF-10 pursuant to s. 35(1) of the Schedule
21The applicant further submits that pursuant to s. 35(1) of the Schedule, as he was entitled to both an IRB and a NEB, an OCF-10 was required. The applicant submits that the respondent’s response in its letter dated February 23, 2022, in respect to s. 35 of the Schedule, is legally wrong and that an election of benefits is available to the applicant. The applicant submits that as the respondent’s response is legally wrong, it has not met the requirements of s. 36(4)(b) of the Schedule.
22The respondent further submits that with respect to s. 35(1) of the Schedule, even if the Tribunal finds that it was non-compliant with s. 35(1) of the Schedule, by failing to give the applicant notice that it must elect the benefit he wishes to receive, the applicant is not automatically entitled to payment of a NEB due to this legal error.
23I find that the reasons provided by the respondent in its notice letter are not required to be legally correct. I rely on the Court of Appeal decision referred to by the respondent in Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA), where the Court of Appeal held that a denial must provide a reason for the refusal, however the reason does not need to be legally correct. The respondent’s letter of February 23, 2022, reiterated that the applicant was not entitled to a NEB because he was entitled to an IRB. It further stated that “there is no section of the Statutory Accident Benefits Schedule allowing you to make an election”. While the applicant submits that this statement is not “legally correct”, I find that this does not mean that the respondent is non-compliant with s. 36(4) of the Schedule. A denial does not need to be legally correct.
24I further note, that following receipt of the respondent’s letter in response to the OCF-10, dated February 26, 2022, there is also no correspondence provided by the applicant disputing the determination. The first time that this denial was addressed by the applicant was when he filed a LAT Application on September 6, 2022.
25For the reasons stated above, I find that the applicant has not proven entitlement to a NEB due to the respondent’s non-compliance with s. 36(4) of the Schedule.
(c) Lack of response to the respondent’s correspondence
26The applicant referred to multiple correspondence sent by the respondent to the applicant in follow up to the respondent’s letters of January 26, 2022, and February 23, 2022. The applicant claims that these letters are not proper responses in accordance with s. 36(4) of the Schedule.
27I do not find that the follow up letters provided by the respondent to the applicant dated May 30, 2022, and June 20, 2022, are in non-compliance with s. 36(4) of the Schedule. These letters to the applicant are requesting documents pursuant to s. 33 of the Schedule and are not providing a denial notice. I have not been provided with any correspondence from the applicant where he replied or acknowledged these letters.
28The applicant also refers to the respondent’s letter of September 19, 2022, where the respondent requests further medical documentation to support his claim for a NEB as well as follow up letters from the respondent dated October 3, 2022, April 20, 2023, and May 10, 2023. Again, these letters are requesting documents pursuant to s. 33 of the Schedule and are not providing a denial notice. I have not been provided with any correspondence from the applicant where he replied or acknowledged these letters or provided the documentation requested.
29For the reasons stated above, I find that the applicant has not proven entitlement to a NEB due to the respondent’s non-compliance with s. 36(4) of the Schedule.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is not entitled to a NEB, no interest is payable by the respondent.
ORDER
31For the reasons outlined above, I find:
i. The applicant is not entitled to a NEB from January 16, 2022, and ongoing;
ii. The applicant is not entitled to interest; and
iii. The application is dismissed.
Released: November 15, 2024
__________________________
Melanie Malach
Adjudicator