Licence Appeal Tribunal File Number: 24-006563/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:
Joe Ram
Applicant
and
Unifund Assurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Reno Berlingieri, Counsel
For the Respondent:
David E.W. Koots, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Joe Ram (the “applicant”) was involved in an accident on November 12, 2018, 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 Unifund Assurance Company (the “respondent”) 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:
i. Is the applicant barred from proceeding to a hearing for his claim for an income replacement benefit (IRB) because he failed to submit a completed OCF-3 with his application for the benefit and within 104 weeks of the accident?
RESULT
3The applicant is barred from proceeding to a hearing.
PROCEDURAL ISSUE
4The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order identified the preliminary issue, indicates that it was to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. Despite this order, no submissions were filed on behalf of the applicant.
ANALYSIS
Background
5The applicant was involved in an accident on November 12, 2018. On November 22, 2018 the respondent sent the applicant a letter outlining the application process and a description of benefits that may be available to him. It advised that the application for benefits (OCF-1) needed to be submitted within 30 days, and an OCF-3 was required to apply for specified benefits.
6In May 2019, a treatment plan was denied on the basis that no application for benefits had been received. Log notes indicate that on January 6, 2020 the respondent wrote to the applicant advising that no OCF-1 had been submitted, and no treatment could be paid. On January 13, 2020, the handling adjuster called the applicant, and he advised that he had not received the accident benefits package previously mailed to him. After confirming the address was correct, the package was re-sent. The same day, an OCF-1 was submitted which indicated that his injuries did not prevent him from working and that he returned to work two days after the accident.
7On February 5, 2020 the respondent sent an explanation of benefits acknowledging receipt of the OCF-1, indicating a return to work but noted if this information was incorrect or the applicant’s situation changed, the applicant was to advise.
8The applicant subsequently underwent a number of insurer’s examinations with respect to his entitlement to various medical benefits. During these assessments, the applicant reported that he had returned to his pre-accident employment on modified duties but had missed days on and off.
9On May 31, 2023 the applicant filed his first application to the Tribunal, seeking entitlement to IRB. On June 12, 2023 the respondent advised that no OCF-3 or employer’s confirmation form (OCF-2) had been received. On June 20, 2023 the applicant’s representative emailed a copy of an OCF-3 dated November 26, 2018. There was no fax confirmation or markings on the OCF-3 to indicate that it had previously been submitted.
10On June 26, 2023 the respondent provided an explanation of benefits advising that the OCF-3 submitted on June 20, 2023 had not previously been received. After the case conference, the first application to the Tribunal was withdrawn. The respondent provided an updated explanation of benefits dated February 8, 2024 and requested documents pursuant to section 33, including proof that the OCF-3 was submitted prior to June 2023.
11The current application to the Tribunal was filed on May 24, 2024, also seeking entitlement to IRB. The case conference report and order with respect to the subject application indicates that the applicant agreed to provide all document establishing that a completed OCF-3 was provided to the respondent prior to June 2023 within 21 days of the case conference (held September 19, 2024).
12According to the respondent, to date, the applicant has not provided any further details as to when the applicant claims the OCF-3 was submitted nor by what method.
The Law
13Section 5(1)(1)i of the Schedule sets out that IRB is contingent on an insured person suffering a substantial inability to complete their essential tasks of employment within 104 weeks of the accident.
14Section 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) requires that an applicant seeking a specified benefit, which includes IRB, shall submit a completed disability certificate with the application. Section 36(3) states that no specified benefits are payable for any period before the disability certificate is submitted.
The OCF-3 was filed late
15I find that the applicant’s OCF-3 was not filed within the timelines prescribed by the Schedule.
16The evidence supports a finding that the OCF-3, although dated November 26, 2018, was not submitted to the respondent until June 20, 2023. There is no evidence that the document was provided to the respondent prior to that date.
17The respondent submits that the applicant’s failure to submit a disability certificate within 104 weeks of the accident bars his claim for IRB. In support of its position, the respondent relies on Tribunal decisions J.V. v. TD Insurance Meloche Monnex, 2019 CanLII 110091 (ON LAT) (J.V.); C.G. v. Pembridge insurance, 2020 CanLII 51276 (ON LAT) (C.G.); and Scandlan v. Primmum Insurance Company 2023 CanLII 122947 (ON LAT) (Scandlan).
18Although not binding, I find the cases cited persuasive. They involved similar facts to the present case, where the applicant did not submit a completed OCF-3 within 104 weeks of the accident. They held that the Schedule sets out strict requirements to apply for an IRB. I find that Section 5(1)1 of the Schedule, which outlines the basic entitlement to IRB, must be read together with section 36(3). Accordingly, I find that the Schedule requires that an application for IRB be made within 104 weeks of an accident. If not, the claim is barred. Here, the disability certificate was not submitted until 240 weeks after the accident.
19I find that the applicant did not submit a completed OCF-3 claiming entitlement to an IRB within 104 weeks of the accident, and is therefore not entitled to an IRB.
ORDER
20The applicant is barred from proceeding with his application.
21The application is dismissed.
22The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.
Released: December 17, 2024
Kate Grieves
Adjudicator