Salam Ahmed v. Allstate Insurance, 2024 CanLII 67364

23-013990/AABS-PI

Licence Appeal Tribunal File Number: 23-013990/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:

Salam Ahmed

Applicant

and

Allstate Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Alexander Lemp, Counsel

For the Respondent:

Taskeen Abdul-Rawoof, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Salam Ahmed (“the applicant”) was involved in an accident on September 30, 2021, 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 Allstate Insurance (“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 as the OCF-3 does not support entitlement to the non-earner benefit (“NEB”)?

RESULT

3The applicant may proceed with his application.

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 by the applicant.

ANALYSIS

5The respondent submits that the applicant should be barred from proceeding with his application because the disability certificate (OCF-3) did not support entitlement to the benefits.

6The initial application for benefits indicated that the applicant was unable to return to normal activities as a result of the accident. An OCF-10 was submitted on October 26, 2021 electing NEB.

7By explanation of benefits dated November 11, 2021, the respondent advised the applicant that it required a completed OCF-3 to determine eligibility for NEB.

8The OCF-3 was submitted on January 13, 2022. It indicated that the applicant did not suffer a complete inability to carry on a normal life. The respondent advised the applicant that he was not eligible for the NEB since the OCF-3 did not support that he suffered a complete inability to carry on a normal life as a result of the accident.

9A second OCF-3 was submitted on August 8, 2023, that indicates that the applicant suffered a complete inability to carry on a normal life as a result of the accident. The respondent paid the NEB to the applicant from the date the supporting OCF-3 was submitted (August 8, 2023), to the 104-week mark.

10The applicant seeks entitlement to the NEB for the period from four weeks post-accident to August 7, 2023. The respondent submits that the applicant did not submit a “completed application for the benefit” because the OCF-3 did not support entitlement to the benefit.

11Section 36(2) of the Schedule specifies that “an applicant for a specified benefit shall submit a completed disability certificate with his or her application under section 32.” Section 36(3) states “An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted”.

12Section 55(1) provides that the applicant shall not apply to the Tribunal if he has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Schedule.

13To me, the respondent is conflating the application for a specified benefit with the test for entitlement. They are separate steps. It is non-compliance with the application – the first step – that bars the applicant from filing an application to the Tribunal. Whether the applicant meets the entitlement test for NEB – the second step -- should be addressed at a substantive hearing.

14I find that the applicant submitted a completed application. The applicant submitted a completed OCF-3 signed by a nurse practitioner. It contained all the information required for the respondent to decide on the applicant’s entitlement to NEB. The document confirmed the applicant’s disability (or rather, lack thereof), and entitlement to NEB. In response to this document, the respondent advised that he was not eligible for the benefit based on the OCF-3. It never advised the applicant that his application was incomplete. The respondent’s correspondence does not address application issues, it addressed entitlement.

15Further, the Schedule does not specifically require the OCF-3 to be positive for the specified benefits being sought for the OCF-3 to be considered complete. Here, the respondent used the medical certification that he did not qualify to refuse to pay the benefit pursuant to section 36(4)(b).

16Accordingly, I find that the applicant submitted a completed application. Whether he meets the entitlement test to NEB during the period in dispute is best addressed by the adjudicator at the substantive hearing.

ORDER

17The applicant is not barred from proceeding.