Licence Appeal Tribunal File Number: 23-013173/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:
Jennifer Butcher
Applicant
and
Royal & Sun Alliance Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Steven Wilder, Counsel
For the Respondent: Robbie Brar, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jennifer Butcher, the applicant, was involved in an automobile accident on October 8, 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 the respondent, Royal & Sun Alliance Insurance Company of Canada, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 5, 2021, and ongoing? ii. Is the applicant entitled to $39.50 for travel expenses, submitted on a claim form (OCF-6) submitted March 24, 2023? iii. Is the applicant entitled to $284.08 for cortisone injection and travel expenses, submitted on a claim form (OCF-6) submitted April 13, 2023? iv. Is the applicant entitled to interest on any overdue payment of benefits? v. Is the respondent liable to pay an award under section 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
3The applicant was removed from the minor injury guideline on August 4, 2023 based on a pre-existing injury. Therefore, it is no longer in dispute.
RESULT
4The applicant is not entitled to a non-earner benefit from November 5, 2021 to March 20, 2023.
5The applicant is not entitled to $39.50 for travel expenses.
6The applicant is not entitled to $284.50 for cortisone injection and travel expenses.
7The applicant is not entitled to interest.
8The respondent is not liable for an award.
PROCEDURAL ISSUES
9The respondent raised an issue; should the applicant’s special award particulars (“particulars”) be excluded from this record?
10The respondent submits that the applicant’s particulars total 19 pages and should be included in the 15-page limit set by the Case Conference Report & Order (“CCRO”) for submissions. The respondent did not state what prejudice, if any, would be caused by this.
11The applicant submits in reply that the particulars should be allowed. The applicant did not state what prejudice, if any, would be caused by not allowing the particulars.
12The Tribunal’s Order following the case conference was clear that the applicant was to provide her particulars to the respondent no later than 30 calendar days after receipt of the adjuster’s log notes from the respondent.
13I agree that the particulars are submissions and not documentary evidence. However, the respondent has failed to demonstrate any prejudice that it sustained as it was aware of the particulars prior to the hearing and was able to respond.
14I find in favour of the applicant when weighing procedural fairness and any potential prejudice brought. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter. As such, I will not exclude the applicant’s particulars as requested by the respondent. However, I remind the applicant that non-compliance with Tribunal Orders is strongly discouraged, and it was solely within my prerogative to permit these additional submissions into the record.
ANALYSIS
The applicant is not entitled to a non-earner benefit
15I find the applicant has not met her burden to prove her entitlement to a non-earner benefit from November 5, 2021 to March 20, 2023.
16Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for non-earner benefit entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
17The applicant submits the respondent approved a non-earner benefit for the period starting March 21, 2023 to October 8, 2023, and it stands that the applicant must be entitled to the non-earner benefit from November 5, 2021 to March 20, 2023. The applicant summarized her injuries include a left wrist fracture, pain in her upper back, shoulders, and left hip. The applicant submits these injuries impacted her ability to care for her grandchildren, perform housekeeping, and home maintenance.
18The applicant relies on two OCF-3s, the OCF-23, clinical notes and records (“CNRs”) of CBI Health, as well as Ahmed v. Allstate Insurance, 2024 CanLII 67364 (ON LAT) (“Ahmed”) and Snagg v. Certas Home and Auto Insurance Company, 2021 CanLII 60477 (ON LAT) (“Snagg”).
The first OCF-3 submission
19The applicant’s initial OCF-3 dated February 2, 2022 prepared by Dr. Sadeer Peter, physician, states the applicant’s injuries include anxiety, PTSD, left wrist pain, upper back pain, memory loss. In Part 6 of the OCF-3 Dr. Peter indicates the applicant does not suffer a complete inability to carry on a normal life, the applicant does not suffer a substantial inability to engage in caregiving activities, and the applicant can return to work on modified hours and/or duties. Dr. Peter indicates a duration of more than 12 weeks. In her submissions the applicant “acknowledges that the [first] OCF-3 did not support NEBs” and she argues the respondent made no effort to follow up or investigate the claim further.
20The respondent submits the non-earner benefit was denied based on the OCF-3 dated February 2, 2022, provided by the applicant. The respondent relies on the denial letter dated April 18, 2022 that states based on the OCF-3, “you do not suffer a complete inability to carry on a normal life. Therefore, you are not entitled to non-earner benefits.”
21The respondent states it can only act in accordance with the documents submitted by the applicant, and it is the applicant’s onus to submit the required documents and to attend the required appointments.
22In my view, the respondent rightfully denied the non-earner benefit because the applicant’s OCF-3 did not support entitlement. Here, I agree with the respondent, that the onus is on the applicant and based on the OCF-3 submitted and the CNRs of CBI Health, it is under no obligation to request another OCF-3 or to further assess the applicant’s entitlement to the non-earner benefit until such time as the applicant submits updated or new evidence in support of her claim.
23The first OCF-3 did not support entitlement to non-earner benefits because Dr. Peter indicated the applicant did not suffer a complete inability to carry on a normal life and effectively gave an opinion that the applicant failed to meet the test for non-earner benefits. The OCF-3 was filled out completely, dated, and signed by a regulated healthcare professional. The OCF-3 confirmed, or more accurately denied, the applicant’s disability and entitlement to the non-earner benefit.
24I find Ahmed does not support the applicant’s position. The applicant argues in Ahmed that the OCF-3 did not support non-earner benefits, but it still contained all the information required for the respondent to determine the applicant is entitled to non-earner benefits. The applicant argues that this decision supports her position that OCF-3s are not that important in analyzing whether an insured meets the test for entitlement to non-earner benefits.
25The applicant argues in Snagg no part of the Schedule requires the OCF-3 to be positive for the specified benefit which is being sought and that the Tribunal does not require the OCF-3 to be supportive. The applicant argues that this decision supports her position that a supportive OCF-3 is not required for entitlement to non-earner benefits.
26I find the applicant mischaracterized the adjudicator’s comments from Ahmed and Snagg. I find Snagg does not support the applicant’s position because in Snagg the respondent did not receive a complete OCF-3 and failed to raise the issue with the applicant. The Tribunal found that the applicant completed an OCF-3 and was able to proceed with the application. Unlike Snagg, there is a completed OCF-3 here, and that completed OCF-3 does not support the applicant’s claim. The issue in Ahmed and Snagg was around the completeness of the application and an OCF-3 that did not support the applicant’s claim. The distinguishing features here are that the applicant was not barred from proceeding, the application was considered complete, and the denial is based on a complete application that is not supportive of the applicant’s claim. The completeness of the application is not at issue here.
27Snagg and Ahmed do not support the applicant’s argument because the point that each adjudicator made is that the Schedule does not specifically require the OCF-3 be positive for the specified benefit sought for it to be complete. In the first application for non-earner benefits the applicant’s OCF-3 was both complete and clearly identified that the applicant did not suffer a complete inability to carry on a normal life. The applicant then made a successful second attempt and received non-earner benefits based on an updated OCF-3.
28I find the applicant’s argument that the respondent did not follow up or investigate the claim fails for three reasons; first, because the onus is on the applicant to demonstrate entitlement to the benefit, not the respondent to disprove entitlement. Second, her claim was not denied because it was not complete. Third, because the evidence did not support the applicant’s position.
The second OCF-3 submission
29The applicant submitted a second OCF-3, dated March 6, 2023, completed by Dr. Diane Valerio, chiropractor, 17 months after the accident. Part 6 of this OCF-3 states the applicant suffers a complete inability to carry on a normal life with a duration of more than 12 weeks.
30In a letter dated May 10, 2024, the respondent initiated the non-earner benefit for the period of March 21, 2023 to October 8, 2023.
31The applicant argues the respondent’s payment of the non-earner benefit based on the second OCF-3 “confirms that the respondent accepted the applicant met all legal and medical requirements for NEBs, thereby eliminating the need to prove entitlement to NEBs and qualification by the application under the criteria set out in Heath or Kabongo.”
32The respondent argues the applicant is not entitled to a non-earner benefit in accordance with section 36(3) of the Schedule that states that an insured person who fails to submit a completed OCF-3 is not entitled to a non-earner benefit for any period before that.
33Section 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.” The second OCF-3, dated March 6, 2023, was received by the respondent on March 21, 2023. The applicant bears the onus to demonstrate entitlement to the benefit and the applicant did not meet this burden in the initial application. In my view, the applicant’s entitlement begins with the submission of the complete OCF-3 form, in support of the benefit, and on the date noted in Part 10 Health Practitioner Signature of the OCF-3.
34I find the respondent did not err nor did the respondent delay or withhold the applicant’s non-earner benefits because the applicant’s initial OCF-3 did not support her entitlement to the benefit. The second OCF-3 submitted by the applicant supported her entitlement to the benefit and the respondent initiated the non-earner benefit at that time.
35I find on a balance of probabilities that the applicant has fallen short of meeting her onus in proving her entitlement to a non-earner benefit for the period of November 5, 2021 to March 20, 2023.
Is the applicant entitled to $39.50 for travel expenses?
36I find the applicant has not met her onus to demonstrate that she is entitled to the unapproved transportation expense.
37The applicant submits the travel expenses were incurred because she was unable to drive to her assessment with the fracture clinic the day after the accident. The travel expense includes parking fees of $3.50, $4.50, and $6.00; gas for $10.00; and a taxi for $16.00. The applicant relies on section 38(2)(b) and (d) of the Schedule.
38The respondent submits that the expense was denied because the distance traveled is less than 50 km and she is not catastrophically impaired. The respondent relies on the explanation of benefits letter dated March 28, 2023, section 3(1) of the Schedule, and states the expenses were reasonably denied.
39I agree with the respondent and find that the expenses are not authorized transportation expenses as outlined in section 3(1) of the Schedule and the respondent is not liable to pay these costs. Definition b of “authorized transportation expenses” found in section 3(1) provides that the respondent is not liable to pay an authorized transportation expense for the first 50 kilometers of a trip, unless the insured person sustained a catastrophic impairment as a result of the accident. Here, the applicant did not sustain a catastrophic impairment.
40I find on a balance of probabilities that the applicant is not entitled to the travel expense.
Is the applicant entitled to $284.08 for cortisone injection and travel expenses?
41I find the applicant has not met her onus to demonstrate that she is entitled to the unapproved cortisone and travel expenses.
42The applicant submits the expenses were incurred because of the accident. The travel expense is for $234.08 over the period of October 2021 to February 2023, and the cortisone injection is for $50.00. The applicant relies on the invoice for the cortisone injection and a travel expenses form.
43The respondent submits that the expense was denied because the applicant did not sustain a catastrophic impairment and each of the individual trips did not exceed 50 kilometers. The respondent relies on the denial letter dated April 14, 2023. In the denial letter the respondent requested a medical referral indicating the need for the cortisone injection and how it relates to the injuries sustained in the accident; an invoice for the cortisone injection; and an explanation why the cortisone injection could not have taken place closer to her place of residence.
44The applicant has not directed me to evidence in support of the accident-related injury resulting in the cortisone injection. Additionally, the applicant refers to an “estimate” as an invoice for the cortisone injection.
45I agree with the respondent, as stated above, regarding the travel expense, the respondent is not liable to pay this cost.
46For these reasons I find the applicant is not entitled to the cortisone and travel expenses.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payment no interest applies.
Award
48I find an award is not appropriate because the respondent did not unreasonably withhold or delay payment of a benefit.
49The applicant sought an award under section 10 of Reg. 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
50The applicant submits the respondent has failed to properly manage and respond to her claim for benefits for almost two years and requests an award as a result.
51The respondent submits the applicant did not provide compelling evidence in support of her claims and their correspondence meets the standards required by the Schedule. The respondent also submits it arranged for lump sum payments despite the findings of the section 44 insurer examinations for the non-earner benefit.
52I find the applicant has not established that the respondent unreasonably withheld or delayed payment of the non-earner benefit. The insurers are not held to a standard of perfection. An award is ordered when an insurer’s conduct is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Here, the respondent relied upon its assessor reports, which it is entitled to do so. The applicant does not point me to evidence to establish that the respondent unreasonably withheld or delayed the payment of her MIG or non-earner benefit. The respondent retained medical professionals to complete an assessment and then approved the benefits in dispute.
53As such, the applicant has not provided evidence to demonstrate that the respondent disregarded compelling medical evidence which resulted in the respondent unreasonably withholding or delaying payment for the disputed benefit.
54Accordingly, I find the applicant is not entitled to an award because the respondent did not unreasonably withhold or delay payment of a benefit.
ORDER
[55] For the reasons outlined above, I find that; i. The applicant is not entitled to a non-earner benefit from November 5, 2021 to April 2, 2023. ii. The applicant is not entitled to the OCF-6 for travel expenses. iii. The applicant is not entitled to the OCF-6 for travel expenses and a cortisone injection.
56The applicant is not entitled to interest.
57The respondent is not liable for an award.
58The application is dismissed.
Released: November 17, 2025
Aric Bhargava Adjudicator