Citation: Wilson v. Coachman Insurance Company, 2025 CanLII 97759

Licence Appeal Tribunal File Number: 24-001779/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:

Conrad F R Wilson

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Sam C. Pitaro, Counsel

For the Respondent: Jennifer Cosentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Conrad Wilson, the applicant, was involved in an automobile accident on February 11, 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, Coachman Insurance Company, 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 $204.91 per week from February 18, 2022 to March 21, 2022?

ii. Is the applicant entitled to $640.00 for chiropractic services incurred at Don Valley Health and Wellness?

iii. Is the applicant entitled to $45.00 for the cost of an ambulance, submitted on a claim form (“OCF-6”) on February 6, 2024?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

3The Case Conference Report and Order (“CCRO”), dated June 3, 2024, lists issue 1 as, “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 18, 2022 to April 30, 2022?” In the applicant’s submissions, he states that the issue in dispute is entitlement to an IRB in the amount of $204.91 per week from February 18, 2022 to March 21, 2022. I have therefore amended the issue in dispute.

4The CCRO lists issue 2 as, “Is the applicant entitled to $2,200.00 for chiropractic services issued on a Treatment Confirmation Form (“OCF-23”) by Don Valley Health and Wellness on February 6, 2024?” In the applicant’s submissions, he seeks an order for entitlement to “Don Valley Health and Wellness treatment expenses in the amount of $640.00”. I have therefore amended the issue in dispute.

RESULT

5I find that the applicant is entitled to an IRB in the amount of $204.91 per week from February 18, 2022 to March 21, 2022, plus interest.

6I find that the applicant is not entitled to chiropractic services in the amount of $640.00.

7I find that the applicant is not entitled to $45.00 for the cost of an ambulance.

PROCEDURAL ISSUES

Background

8The applicant was involved in an accident on February 11, 2022, when he was struck by a third-party vehicle while crossing the street as a pedestrian. Following the accident, police were called to the scene of the accident and the third-party driver was charged. The driver provided her information and vehicle insurance information to the police officer and in turn provided the applicant with a copy of the Motor Vehicle Accident Report. The report indicates that the vehicle that struck the applicant was insured by the respondent.

9The applicant submits that at the time of the accident, he did not have a valid driver’s licence, nor did he own, regularly operate or have access to a motor vehicle. At the time of the accident, the applicant did not have automobile insurance coverage, and he did not reside with anyone who had automobile insurance coverage.

10By letter dated March 2, 2022, the applicant submitted his Application for Accident Benefits (“OCF-1”) to the respondent. By letter dated March 4, 2022, the respondent advised that it would not accept his claim because the policy was not active on the date of loss and had expired on September 29, 2021. By letter dated March 9, 2022, the applicant submitted a second OCF-1 to the Motor Vehicle Accident Claims Fund (“MVACF”). By email dated March 22, 2022, the MVACF advised the applicant that it could not consider his claim because pursuant to Ontario Regulation 283/95 - Disputes Between Insurers Regulation (“the Regulation”), the first insurer to receive an OCF-1, is responsible for paying benefits pending resolution of a dispute as to which insurer is required pay under s. 268 of the Insurance Act.

Positions of the parties

11The applicant submits that the respondent has denied his claims for accident benefits, not on the merits, but on the basis that their policy was not in effect at the time of the accident. The applicant submits that as the respondent was the first insurer to receive an application, it is required to pay him accident benefits. The applicant submits if the respondent disputes priority of the claim, it must do so under the Regulation, as the Tribunal does not have jurisdiction to determine priority and only has jurisdiction to determine his entitlement to accident benefits.

12The applicant relies on several decisions in his submissions to support his position that there is a very clear nexus between the applicant and the respondent in order for him to claim accident benefits. The applicant relies upon the Ontario Divisional Court decision in Allstate Insurance Co. of Canada v. Brown, 1998 Carswell Ont 2363, where the Court agreed with the arbitration decision that ordered Allstate to pay interim benefits pending resolution of the priority dispute. In that decision, Allstate alleged that there was no valid policy because it had expired four months prior to the accident. The arbitrator found a sufficient nexus to require Allstate to pay interim benefits as the previous policy, while no longer in existence, prima facie provided enough evidence to create a connection between the parties sufficient to generate an obligation by Allstate to respond to the application. In the Ontario Court of Appeal decision in Kingsway General Insurance Co. v. Ontario (Minister of Finance), 2007 ONCA 62, Justice Laskin agreed with the arbitrator that there was a sufficient enough nexus to trigger Kingsway’s obligation to pay under the Regulation. Kingsway cancelled its policy two days prior to the accident and refused to pay accident benefits even though they were the first to receive an application. The arbitrator found that a significant nexus existed between the applicant and Kingsway and that the Regulation required Kingsway to pay benefits and then dispute priority.

13The applicant submits that the driver of the vehicle that hit him told the police officer that she was insured by the respondent and the police officer included this information in his preliminary report. The applicant submits that he was entitled to rely on this information. He submits that his decision to apply to the respondent was reasonable and was not arbitrary. He argues that as the respondent was the first insurer to receive his completed OCF-1, it was not entitled to deflect his claim on the basis that a policy did not exist at the time of the accident.

14The respondent submits that the applicant is not an “insured person” under section 3(1) of the Schedule. The respondent argues that as the insurance policy of the third-party driver was not valid on the date of loss, as it was terminated as of September 29, 2021, the applicant is not an “insured person” after the policy expired. The respondent submits that there is no priority dispute between two insurers governed by the Regulation, because there was no automobile policy in effect at the time of the subject accident and there is no dispute between automobile insurers. The respondent further submits that the applicant has not established that he believed that it provided coverage at the time of the accident. It argues that the inclusion of its name on a police report does not conclude that the policy was valid.

The respondent was required to adjust the applicant’s claim

15Pursuant to the Regulation, the first insurance company to receive a completed application for accident benefits is obligated to pay benefits. The Regulation sets out a mandatory process for private arbitrations of all disputes between insurers over which insurer is liable to pay accident benefits to a claimant. This regulation is intended to ensure that claimants receive accident benefits in a timely fashion while these disputes are being resolved. The regulation requires the first insurer that receives a completed OCF-1 application to pay the accidents benefits as long as the insured meets the requirements of the Schedule. Although an insurer may believe that it is not responsible for paying accident benefits under the priority rules, the process to transfer, dispute and recover paid benefits is set out in the Regulation.

16I am bound by, and agree with the findings in the decision of Kingsway v. Ontario, at paragraph 20, where the Court stated that,

Insurers cannot avoid their obligations under section 2 by claiming that another insurer should pay or that an insurance policy was cancelled shortly before the accident. If they could deny an application for benefits on either of those grounds, section 2 would be rendered meaningless. As long as there is some nexus – some connection – between the insurer receiving an application for benefits and the insured, the insurer must pay pending the determination of its obligations to do so.

17I find that the applicant has proven that there was a nexus between the respondent and himself. Following the accident, the applicant was told that the driver had insurance with the respondent and there was no reason for the applicant to question this information or believe that this information was false. Whether that information was subsequently proven to be incorrect was not the responsibility of the applicant. The applicant followed the proper procedures under the Schedule and applied to the respondent for accident benefits. If the respondent subsequently determined that there was an issue with the policy of insurance and disputed the applicant’s entitlement to benefits on this basis, it was required to commence a priority dispute. The respondent upon receipt of the first OCF-1 was required to adjust the claim and then dispute priority.

18I find that the Tribunal has no jurisdiction to consider a priority dispute and arbitrators under the priority regime have the exclusive jurisdiction to determine priority disputes about which insurer is obligated to pay benefits pursuant to the Schedule. The Tribunal has the exclusive jurisdiction to determine entitlement to accident benefits.

19I therefore find that the applicant was entitled to claim accident benefits from the respondent and the respondent was required to adjust the claim as it was the first insurer to receive a completed OCF-1.

ANALYSIS

Entitlement to an Income Replacement Benefit (“IRB”)

20I find that the applicant is entitled to an IRB in the amount of $204.91 per week from February 18, 2022 to March 21, 2022.

21Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

22The applicant submits that at the time of the accident, he was employed as a dishwasher, line cook and preparation cook and earned $15,221.94 in the 52 weeks pre-accident. He claims that he is entitled to a weekly IRB of $204.91 from February 18, 2022 to March 21, 2022, based on his pre-accident income. The applicant submits that with the exception of a few shifts within the first week after the accident, he was unable to work and remained off of work from the date of the accident until March 21, 2022. The applicant relies upon the Clinical Notes and Records (“CNRs”) of Dr. Karl Iglar, family physician, which advised him on February 22, 2022, to stay off of work until at least March 21, 2022, due to his ongoing pain in his right hip and leg. Dr. Iglar in a Disability Certificate (“OCF-3”) dated February 21, 2024, confirmed that the applicant was unable to perform the essential tasks of his pre-accident employment until March 21, 2022. The applicant further relies upon the CNRs of St. Michael’s Hospital and Don Valley Health and Wellness Centre to support the injuries he suffered in the accident.

23The respondent submits that the applicant has not produced any documentation, other than an Employer’s Confirmation (“OCF-2”) to support that he was an employed person at the time of the accident. The respondent submits that there are no specifics provided as to the essential tasks of employment engaged in by the applicant before or after the accident. It further submits that there is no medical expert opinion that states that he suffered a level of disability to engage in his pre-accident employment.

24The applicant in his reply submissions states that he submitted an OCF-1, an OCF-2 confirming employment and income, and an OCF-3 confirming his disability for the period during which benefits are claimed. The applicant further submits that he provided hospital records and doctor’s records that confirm his injuries and disability. The applicant submits that the respondent never evaluated the merits of his claim, nor did it request further information. The applicant argues that the respondent denied his claim based on its position that it was not required to pay him accident benefits.

25I find upon review of the medical documentation provided by the applicant that he has proved on a balance of probabilities that he is entitled to an IRB.

26I find upon review of the OCF-1, dated March 2, 2022, that the applicant indicated that he attended St. Michael’s Hospital following the hospital. He states that, “I suffered multiple injuries. I struck my head and suffered a black eye. My glasses were broken. I also injured my left hand and right leg. I experience headaches.” He indicates that he was employed and working at the time of the accident from 2014 to February 11, 2022, as a dishwasher and line cook at The Bottom Line, earning $16.00 per hour. He states that his injuries prevent him from working from February 11, 2022.

27The CNRs from St. Michael’s Hospital, dated February 11, 2022, confirm that the applicant was seen in the emergency department with a head injury following the accident. The applicant was given a note to remain off work as needed on February 12-13, 2022. The CNRs from February 19, 2022, note that the applicant returned to the hospital with complaints of ongoing right thigh and hip pain after being struck by a car a week ago. An x-ray of his right hip showed a small avulsion fracture of the superior part of the acetabulum. He was referred for physiotherapy and told to follow up with his family doctor. There is a note from Dr. Brodie Nolan, advising the applicant not to work until February 22, 2022, due to medical reasons.

28Upon review of the CNRs of Dr. Iglar, the applicant was seen on February 14, 2022, with complaints of pain in his right leg. His closed head injury was asymptomatic. He was advised to use Tylenol and monitor his symptoms. He returned to see Dr. Iglar on February 22, 2022, with right hip pain and he was advised to start physiotherapy. He was provided with a note to remain off work until March 21, 2022. Dr. Iglar provided an OCF-3 dated February 12 2024, stating that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment and that he was to stay off work until March 21, 2022.

29Upon review of the CNRs from Don Valley Health and Wellness Centre, the CNR dated March 4, 2022, confirms that the applicant was diagnosed with right anterior hip strain and right knee sprain following the accident. The applicant received chiropractic treatment from February 25, 2022 to April 19, 2022 in the total amount of $640.00.

30An OCF-2 dated February 12, 2024, confirmed that that applicant was employed as a dishwasher/line cook/prep cook at The Bottom Line restaurant from March 20, 2015 to March 20, 2024. He earned $15,221.94 gross income in the 32 weeks before the accident. The OCF-2 was signed by his employer.

31I find that both the OCF-1 and the OCF-2 provided by the applicant support that he was employed and working at the time of the accident. While the respondent submits that the applicant has not proven that he was employed on the date of the accident, other than denying his claim for an IRB, no further documentation was requested to be provided and there is no indication in the respondent’s submission as to what other documentation it requires of the applicant to support that he was employed on the date of the accident.

32I find that the CNRs from the hospital, Dr. Iglar and Don Valley Health and Wellness, support the injuries suffered by the applicant to his head, knee and hip. I accept the recommendation by Dr. Iglar for the applicant to remain off work until March 21, 2022, sufficient to support the applicant’s position that he was unable to work for this period after the accident. Again, I find that the respondent did not request any additional documentation from the applicant to prove that he suffered the stated injuries.

33I therefore find that the applicant has proven on a balance of probabilities that he suffered a substantial inability to perform his pre-accident employment as a dishwasher/line cook/prep cook and is entitled to an IRB at the rate of $204.91 per week from February 18, 2022 to March 21, 2022.

Entitlement to payment of chiropractic services

34I find that the applicant is not entitled to the cost of chiropractic services in the amount of $640.00.

35The applicant in his submissions claims entitlement to $640.00 for chiropractic services received at Don Valley Health and Wellness. A copy of the Statement of Account was provided indicating that the applicant incurred 10 chiropractic sessions from February 25, 2022 to April 19, 2022.

36The applicant submits that a treatment plan was submitted on behalf of the applicant by Don Valley Health & Wellness and they provided treatment to the applicant immediately following the accident. The applicant submits that the details and the costs of the treatment have been provided. He further submits that the respondent never evaluated the merits of this claim, nor did it request further information.

37The respondent submits that the applicant has only provided one treatment note dated March 4, 2022, the OCF-23 dated February 26, 2024 and an outstanding account from Don Valley Health & Wellness. The respondent submits that the applicant has provided insufficient medical evidence to support that this medical benefit is reasonable and necessary. It further submits that the applicant cannot prove the treatment goals were met during the treatment at the clinic because of the lack of treatment records.

38I find that the applicant has not met his onus of establishing entitlement to the proposed treatment for the following reasons.

39First, the applicant has not provided a copy of the treatment plan he claims was submitted to the respondent. While there is a copy of an OCF-23, dated February 26, 2024, this document was prepared two years after the treatment was provided.

40Second, the applicant has provided insufficient submissions and evidence to support that the treatment was reasonable and necessary. I find that the applicant has not dealt with the key elements to establishing entitlement to the treatment in his submissions. The applicant has not provided any submissions on the therapeutic goals, whether they are being met, or the costs of the disputed treatment. The applicant has not established whether and how the services received are reasonable, other than providing an invoice setting out the services and dates of treatment he received. I find that while there is a note dated March 4, 2022, assessing the applicant’s injuries from Don Valley Health and Wellness, there are no further particulars about the treatment recommendations or proposed treatment plan.

41For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is entitled to $640.00 for chiropractic services.

Entitlement to ambulance expenses

42I find that the applicant is not entitled to $45.00 for the cost of an ambulance.

43The applicant claims entitlement to $45.00 for the cost of an ambulance, submitted on an OCF-6, dated February 6, 2024. The applicant has not provided any submissions with respect to his entitlement to this expense or any submissions as to whether the ambulance fee is reasonable and necessary.

44For the reasons set out above, I find that the applicant has not met his burden of proving on a balance of probabilities that he is entitled to the ambulance fee.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to an IRB, interest is payable.

ORDER

46For the reasons set out above, I find:

i. The applicant is entitled to an IRB in the amount of $204.91 per week from February 18, 2022 to March 21, 2022, plus interest;

ii. The applicant is not entitled to chiropractic services in the amount of $640.00; and

iii. The applicant is not entitled to $45.00 for the cost of an ambulance.