Licence Appeal Tribunal File Number: 23-000392/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:
Serkam Bulut
Applicant
and
Nordic Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Christina Trotta, Counsel
For the Respondent:
Andrew E Franklin, Counsel
HEARD:
By Way of Written submissions
OVERVIEW
1Serkan Bulut, the applicant, was involved in an automobile accident on July 23 2022, 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, Nordic Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 29, 2022 to December 30, 2022?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not proven on a balance of probabilities that he is entitled to income replacement benefits.
4As no benefit payments have been unreasonably withheld or delayed, no award is owing.
5As no benefit payment is overdue, no interest is owning.
ANALYSIS
Income Replacement Benefit (IRB)
6I find that the applicant has not proven on a balance of probabilities that he is entitled to receive IRB.
7To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
8The applicant submits that he was off work for a ten-week period and worked reduced hours when he returned to work. However, the employment file from Nelmar Drywall indicates the applicant returned to work on Aug 27, 2022, which would represent five weeks, not ten. Additionally, the documentation does not outline the hours worked, so there is no substantiation of the applicant’s submission that he worked reduced hours on his return to his employment following the accident.
9The respondent submits that the applicant is not eligible to receive IRB on the basis of several issues related to the filing of his IRB documentation. The respondent relies on s. 36(3) and s. 33(1.1) of the Schedule and the employment file of Nelmar Drywall.
a) OCF-3 filed late
10I find that the applicant’s eligibility for the IRB would start on August 17, 2022, and not July 29, 2022, as claimed by the applicant. Section 36(3) of the Schedule 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 respondent did not receive the Disability Certificate (“OCF-3”) from the applicant until August 17, 2022.
11The OCF-3 was confirmed to be received by the respondent on August 17, 2022, and the employee information document from Nelmar Drywall states that the applicant returned to work on August 27, 2022. Section 36(4) states “Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall, (a) pay the specified benefit.” The applicant returned to work prior to the ten business days.
b) Information for determination of entitlement
12Further, I find that the applicant did not provide all required documents to be eligible for IRB. In s. 33(1.1) it states that the applicant shall provide “Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.” The respondent confirmed receipt of the OCF-3 on August 17, 2022, and requested the applicant provide an OCF-2, all pre- and post-accident pay stubs for the period of one month before and after the accident, and a T4 for 2021 in accordance with s. 33(1.1). The respondent has provided as evidence several letters requesting outstanding information from the applicant, and the respondent contents that a complete file of the requested information was never received.
13Substantively, I also find that the applicant has not proven on a balance of probabilities that he is eligible to receive IRB. While the applicant has not submitted all of the required information to the respondent to calculate IRB as requested under s. 33, I find he has not met the test for an IRB under the Schedule in any case because he has not demonstrated that he suffered a substantial inability to perform the essential tasks of his employment. Additionally, the applicant did not identify the essential tasks of his employment, which tasks he was unable to perform and to what extent he was unable to perform them as no medical evidence was provided to substantiate those limitations during the period of eligibility for IRB. The applicant made no submissions regarding his claims of being off work for ten weeks and did not rebut the evidence submitted that he returned to work on August 27, 2022. For the narrow period where he remained off work, I find the A has not demonstrated the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them (or similar)…
14I find that the applicant is has not proven on a balance of probabilities that he is entitled to IRB.
Interest
15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owning.
Award
16The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As no benefit payments were unreasonably withheld or delayed, no award is due.
ORDER
17I find that:
i. The applicant is not entitled to IRB
ii. As there are no overdue benefit payments, no interest is owning
iii. As no benefit payments were unreasonably withheld or delayed, no award is due.
iv. The application is dismissed.
Released: March 6, 2025
__________________________
Robert Rock
Adjudicator