Licence Appeal Tribunal File Number: 23-008220/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:
Nurto Muhumed
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Farzana Merchant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nurto Muhumed, the applicant, was involved in an automobile accident on February 13, 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, Jevco Insurance, 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 a non-earner benefit of $185 per week from March 15, 2022 to November 9, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent entitled to costs?
RESULT
3The applicant is not entitled to a non-earner benefit.
4No interest is owing.
5The respondent is not entitled to costs.
6The application is dismissed.
PROCEDURAL ISSUES
7In the applicant’s submissions, she withdrew the following issues as identified in the case conference report and order:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to $4,389.50 for physiotherapy services, proposed by Physio Art, in a treatment plan/OCF-18 (“plan”) dated April 12, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
8The applicant also changed the time period for which the non-earner benefit is being sought, from ending on February 13, 2024, to ending on November 9, 2022.
9Within the respondent’s submissions, the respondent made a request to add the issue of costs. Pursuant to Rule 19.2 of the Licence Appeal Tribunal Rules, 2023, a request for costs may be made at any time before the decision or order is released so it has been added to the issues above.
ANALYSIS
Non-Earner Benefit (“NEB”)
10I find the applicant is not entitled to an NEB for the period of March 15, 2022 to November 9, 2022, following reasons.
11Section 12(1) of the Schedule provides that an insurer shall pay an NEB 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) 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 NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.
12The applicant submits that the benefit is owed because the respondent did not comply with s. 36 of the Schedule.
13Section 36(2) of the Schedule provides that an applicant for a specified benefit shall submit a completed disability certificate with his or her application under s. 32. Further, s. 36(4) of the Schedule provides that within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
i. pay the specified benefit;
ii. give the applicant a notice explaining the medical and any 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 ss. 33(1) or (2).
14Section 36(6) of the Schedule provides that if the insurer fails to comply with ss. (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 ss. (4)(b), on the day the insurer gives the notice.
15The applicant submits that the Application for Accident Benefits (OCF-1) was filed on February 16, 2022, three days after the accident, and the Disability Certificate (OCF-3) was filed on March 15, 2022. This meets the required 4-week waiting period, and the NEB is owing from March 15, 2022 until November 9, 2022, when the respondent informed the applicant in a letter that the NEB was denied. Further, the applicant submits that the first response she received from the respondent regarding the claim for NEB was in a letter dated June 7, 2022, which requested attendance at an Insurer’s Examination.
16The respondent submits that seven days after receipt of the applicant’s OCF-3, it was acknowledged in a letter dated March 22, 2022. It submits that this letter also informed the applicant of the requirement to attend an Insurer’s Examination and attached was a Notice of Examination for March 30, 2022 at 10 o’clock in the morning. Further, the March 22, 2022 letter to the applicant satisfies s.36(4) of the Schedule. The respondent further submits that the June 7, 2022 letter was correspondence to the applicant’s legal representative from the Insurer’s Examination vendor, at whose facility the assessment was to take place.
17I find the respondent’s letter sent to the applicant on March 22, 2022 satisfies the respondent’s requirements under s. 36(4)(b) because within 10 business days after the insurer received the completed disability certificate, it gave notice explaining the medical and other reasons why the respondent did not believe the applicant is entitled to NEB, and advised the applicant of the requirement for an examination under s.44 pursuant to the Schedule.
18I also find that the applicant has not led evidence that supports she suffered a complete inability to carry on a normal life as a result of and within 104-weeks after the accident, as set out in Heath.
19Therefore, I find the applicant has not proven on a balance of probabilities that she is entitled to a NEB.
Interest
20As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Costs
21I find that no costs are payable for the following reasons.
22Pursuant to Rule 19.1, where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.
23The respondent sought costs on the basis that the applicant clearly lacked evidence to support her claim and as such the claim is unreasonable, frivolous, and worthy of an award.
24The applicant did not make submissions on this issue.
25I find that the applicant did not act unreasonably, or frivolously, and that would support an order for costs. The applicant made submissions and led evidence which I have found, for the reasons set out above, do not support a finding of entitlement. There is no prejudice to the respondent in this regard. Further, upon consideration of the factors set out in Rule 19.5, I find that there is no evidence of misconduct, breach of an order of direction of the Tribunal, and that the applicant did not interfere with the Tribunal’s ability to carry out a fair, efficient and effective process.
26I find that the respondent has not proven on a balance of probabilities that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith, therefore I deny the request for costs.
ORDER
27For the reasons above, I order the following:
i. The applicant is not entitled to non-earner benefits.
ii. No interest is owing.
iii. The respondent is not entitled to costs.
iv. The application is dismissed.
Released: May 5, 2025
Tami Cogan
Adjudicator