Citation and Parties
Licence Appeal Tribunal File Number: 24-010174/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:
Carla S. Thomas
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
Decision
VICE-CHAIR: Henry Harris
APPEARANCES:
For the Applicant: Carlos A. Echeverria, Paralegal
For the Respondent: Cecil Jaipaul, Paralegal
Court Reporter: Rachel Thompson
HEARD by Videoconference: July 8, 2025
OVERVIEW
1Carla S. Thomas (the “applicant”) was involved in an automobile accident on May 17, 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 Commonwell Mutual Insurance Group (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In accordance with the case conference report and order dated January 10, 2025 (the “CCRO”), the matter was scheduled to proceed as a 2-day videoconference hearing. The applicant was permitted to call a maximum of three witnesses to give evidence at the hearing and the respondent did not request to call any witnesses. The applicant advised the Tribunal on June 17, 2025 that she would not be calling any witnesses and that she intended to rely solely on documentary medical evidence. As such, the hearing was limited to oral submissions and it was concluded in a single day. The applicant attended the hearing but did not testify.
ISSUES
3The issues in dispute are:
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 (“MIG”) limit?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from June 14, 2022 to May 14, 2024?
iii. Is the applicant entitled to $3,832.28 for physiotherapy services, proposed by Rouge Valley Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted August 8, 2022?
iv. Is the applicant entitled to $5,498.00 for psychological services, proposed by Malvern Medical Clinic and Kennedy's Intervention Services Inc. in a plan submitted December 8, 2022?
v. Is the applicant entitled to $3,092.28 for physiotherapy services, proposed by Rouge Valley Physiotherapy in a plan submitted December 9, 2022?
vi. Is the applicant entitled to $3,092.28 for physiotherapy services, proposed by Rouge Valley Physiotherapy in a plan submitted July 26, 2024?
vii. Is the applicant entitled to the assessments proposed by East Rehabilitation Center, as follows:
i. $2,200.00 for a psychological assessment, in a plan submitted November 14, 2024; and
ii. $2,200.00 for an attendant care assessment, in a plan submitted December 23, 2024?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
4For issue ii above, the CCRO refers to the period of June 17, 2022 to May 17, 2024. I determined the correct period at issue to be June 14, 2022 to May 14, 2024 as set out above, as the entitlement period under s. 12(3) of the Schedule does not commence until after four weeks from the accident and continues for not more than 104 weeks after the accident.
RESULT
5The applicant has not established on a balance of probabilities that her pre-existing condition will prevent maximal recovery from an accident-related minor injury if subject to the MIG limit.
6The applicant is not entitled to an NEB.
7The plans are not payable pursuant to s. 38 of the Schedule.
8As the applicant remains in the MIG, I have not considered if any of the disputed plans are reasonable and necessary.
9The applicant is not entitled to interest.
10The application is dismissed.
PROCEDURAL ISSUES
Respondent’s motion to exclude the psychological report of Cody Eriksen denied
11The respondent filed a motion dated June 26, 2025 to exclude the December 24, 2024 report of Mr. Cody Eriksen, psychologist, which the applicant was seeking to rely on. The respondent argued that it had a reasonable expectation that Mr. Eriksen would be made available for cross-examination at the hearing and pointed to its letter to the applicant dated May 12, 2025 making such request. By letter dated May 23, 2025, the applicant advised the respondent that she would not be calling any witnesses at the hearing. The respondent argued that this amounts to non-compliance with the CCRO, as the applicant had requested a videoconference hearing to present oral evidence from her witnesses. The respondent’s position is that if the applicant knew she was not going to call witnesses, a videoconference hearing should not have been requested as a written hearing would have been the more efficient way to address the issues in dispute.
12The applicant’s position is that she decided not to call any witnesses due to her ongoing financial hardship and that she advised the respondent of this in a timely manner in her letter of May 23, 2025. The applicant argued that she complied with the CCRO, which requires the parties to provide its list of witnesses (or confirmation that no witnesses will be called) 21 days before the hearing. The applicant submitted that Mr. Eriksen’s report is relevant to the issues in dispute as it is the most recent report of her impairments, and excluding it would be prejudicial to her.
13I denied the respondent’s motion. The CCRO provides that the applicant may call a maximum of three witnesses at the hearing from a list of six individuals, which included Mr. Eriksen. Even if the respondent had an expectation that Mr. Eriksen would be one of the witnesses called by the applicant, I find that she complied with the CCRO by advising 21 days before the hearing that no witnesses would be called. In addition, the applicant advised the respondent more than six weeks prior to the hearing that she would not be calling any witnesses. I find that the respondent had the opportunity to pursue a summons for Mr. Eriksen to testify had it wished to do so.
14I invited the parties to speak to what weight they feel should be assigned to the report. In their respective submissions, the parties addressed issues of relevance and reliability of the report, as opposed to specifically the weight that should be assigned as a result of the author of the report not appearing as a witness at the hearing. As such, these submissions will be considered in the context of the overall analysis of the issues that follows in this decision.
Applicant’s motion to exclude the psychiatric report of Dr. Weinstein denied
15In response to the respondent’s motion, the applicant filed a response dated July 3, 2025, in which she sought to exclude the respondent’s s. 44 insurer’s examination (“IE”) report of Dr. Robert Paul Weinstein, psychiatrist, dated March 12, 2025 and his addendum dated April 17, 2025. The applicant argued that the basis for excluding these reports was that they contain significant flaws rendering them unreliable, including Dr. Weinstein failing to consider other medical reports in his possession.
16The respondent submitted it acted in good faith in requesting an addendum to Dr. Weinstein’s report when it was suggested that the report had not considered certain medical reports or documents. The respondent further stated that the applicant’s submissions are arguments with respect to the strength of the Dr. Weinstein’s report and addendum, and that they have nothing to do with the validity of the process.
17I denied the applicant’s motion. I find that the applicant’s submissions are arguments with respect to the strength of the Dr. Weinstein’s report and addendum. The applicant can make such submissions in the hearing as to what weight she feels should be assigned to this evidence.
Applicant’s motion to admit additional documents denied
18After 4:00 pm on July 7, 2025, being the day prior to the hearing, the applicant filed a request to add the following documents which were not including in her document brief: (a) addendum to the December 24, 2024 report of Mr. Eriksen, and Acknowledgement of Expert’s Duty form; and (b) a letter dated December 23, 2024 from the applicant to the respondent following up on unpaid NEB. The parties made oral submissions on the motion at the hearing.
19The respondent indicated that it did not object to the December 23, 2024 letter being added to the applicant’s document brief provided that the respondent’s response letter dated January 3, 2025 was added to its document brief, which it subsequently filed with the Tribunal. The parties consented to this arrangement, which I accepted.
20The respondent objected to the addendum to the report and Acknowledgment of Expert’s Duty form of Mr. Eriksen. The respondent submitted that these documents were filed less than one day prior to the hearing, and that it would be procedurally unfair to introduce these documents at this late stage. The respondent argued that Mr. Eriksen would not be appearing as a witness, thereby denying the respondent the ability to ask questions regarding concerns it had about the validity, authenticity and accuracy of the addendum. For example, the respondent noted that such addendum is dated the same day as the original report of December 24, 2024 and does not provide context as to why it is only being introduced at this time. Also, it contends that the addendum appears to have some inaccuracies from the original report. The respondent further submitted that if the addendum was not within the applicant’s control, she could have sought a non-party production order from the Tribunal.
21The applicant does not dispute that the addendum and Acknowledgement form were filed late. She explained that the reason for the delay was that the clinic withheld the documents until the outstanding balance owing to the clinic was paid, and that the respondent’s denial of coverage for the assessment further delayed its availability. The applicant submits that the addendum is the same as the original report, other than a referral question on the applicability of the MIG, and argues that it is thus relevant to the issue of MIG.
22I denied the applicant’s motion to include the addendum and Acknowledgement form of Mr. Eriksen. I find that the production of these documents did not comply with the deadlines set out in the CCRO for document exchange. Further, the applicant did not advise that it took any steps to alert the respondent that an addendum was forthcoming. I find, under these circumstances, that the production of these documents less than one day prior to the hearing is prejudicial to the respondent as it does not provide it with sufficient time to review and respond to the documents, particularly as the hearing was being conducted in a single day. I also find the addendum would be of limited relevance since, as the applicant submitted, it was the same as the original report other than an additional referral question on the applicability of MIG and a two sentence response.
Applicant’s motion to add new issues denied
23At the start of hearing, the issues in dispute per the CCRO were confirmed. The applicant indicated that the CCRO also included a claim under s. 10 of Reg 664 (“s. 10 claim”) and costs under Rule 19. I asked the applicant to point me where in the CCRO such issues were listed. The applicant then acknowledged that these were not issues listed in the CCRO, apologized and asked that they be added now. The applicant submitted that the basis of the request was that she felt the respondent had been conducting itself in a heavy-handed manner, prolonging the process. The applicant cited that she found it objectionable that two IEs were scheduled in February or March 2025 on consecutive days, and this had to be rescheduled due to her condition.
24The respondent did not consent to adding these issues. The respondent argued that the basis for a s. 10 claim is generally the adjusters’ log notes, which was provided to the applicant more than six months ago. The respondent submitted that when a s. 10 claim is at issue, the Tribunal practice is to order the applicant to produce particulars of the s. 10 claim within 30 days of receipt of the log notes. As no s. 10 claim was raised until the day of the hearing, the respondent has no such particulars and would thus be significantly prejudiced in dealing with such issue as it has no idea what the applicant’s submissions would be.
25I denied the applicant’s motion to add these new issues. Adding a s. 10 claim at the hearing without any prior notice would be prejudicial to the respondent as it would be deprived of proper notice and details of the claim it must meet. It is well established that a party has the right to know the case. I did not find the applicant’s brief explanation of respondent’s scheduling of IEs to be a sufficient explanation for adding the issue, as it sounds like the IEs were rescheduled at the applicant’s request and there was no indication that this delayed the timing for this hearing. Regarding costs, the applicant made no submissions in furtherance of her request to add this issue under Rule 19 regarding the respondent’s conduct in the proceeding.
ANALYSIS
The applicant remains within the Minor Injury Guideline (MIG)
26I find that the applicant has not established on a balance of probabilities that her pre-existing conditions will prevent maximal recovery from an accident-related minor injury if subject to the MIG limit.
27Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
28An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
29In all cases, the burden of proof lies with the applicant.
30Prior to the subject accident of May 17, 2022, the applicant was involved in a motor vehicle accident that occurred on November 9, 2009 and for which she sustained injuries.
31The applicant submits that she suffers from pre-existing chronic pain and psychological impairments due to her involvement in the 2009 motor vehicle accident which have been exacerbated by the subject accident and warrant her removal from and treatment beyond the MIG limit. She argues that prior to the subject accident, she was diagnosed with chronic pain, fibromyalgia, post-traumatic stress disorder (“PTSD”) including vehicular associated anxiety, major depressive disorder and generalized anxiety disorder.
32In support of these impairments, the applicant relies on the clinical notes and records (“CNRs”) of Dr. Tom Bacher, family physician, and other medical practitioners, submitted to the respondent on August 9, 2024, which she submits documents her injuries and treatment from her 2009 accident through to the subject accident. Among the opinions cited for the pre-accident conditions were:
(i) Chronic pain and PTSD – October 25, 2010 progress note of Dr. Vicktor Yatsynovich, psychiatrist;
(ii) Fibromyalgia - October 26, 2012 outpatient department (OPD) note, pain clinic, of Dr. David Shulman;
(iii) Major Depressive Disorder and Anxiety Disorder, Not Otherwise Specified – September 16, 2014 IE psychiatric assessment report of Dr. Ariel Zielinsky, psychiatrist; and
(iv) Other Specific Trauma and Stressor-Related Disorder (to capture features of PTSD including vehicular associated anxiety) – May 3, 2018 s. 25 CAT psychological assessment report of Dr. Dory Becker, psychologist.
33The applicant submits that these records detail the worsening of her impairments, ongoing treatment and her current condition post-accident. She further relies on the psychological assessment report of Mr. Eriksen dated December 24, 2024, which found her symptoms are consistent with Major Depressive Disorder, Moderate single episode, and PTSD.
34In response, the respondent submits that, per the Divisional Court decision in Scarlett v. Belair Insurance, 2015 ONSC 3635, the onus is on the applicant to provide compelling evidence that her pre-existing medical conditions prevent her from achieving maximal recovery a minor injury if subject to the MIG limit. It argues that the applicant has not satisfied this onus as she has not provided compelling medical evidence that says she is unable to achieve maximal recovery within the MIG limit.
35The respondent relies on the s. 44 IE psychiatric report of Dr. Weinstein dated March 12, 2025, and his addendum dated April 17, 2025, that were prepared in response to her OCF-18 claims for psychological services. In particular, the respondent relies on Dr. Weinstein’s opinion that there is no psychiatric diagnosis as a direct result of the subject accident and that substantially all of the current complaints were pre-existing the subject accident.
36I find that the applicant has not provided compelling medical evidence to show that her pre-existing condition prevents her from recovery if she is kept within the confines of the MIG, for the following reasons.
37The applicant entered as evidence the CNRs of her family doctor, Dr. Bacher and other medical practitioners, comprising over 700 pages. However, I was not directed to any specific pages of the CNRs for corroborating medical evidence, despite my request for the applicant to provide pinpoint references. Instead, the applicant listed the names of various medical practitioners whose reports were included within the CNRs, and she explained that the CNRs were being submitted as evidence to show the Tribunal that they were provided to the respondent. Conversely, the respondent directed me to pages in the CNRs covering a period of at least one year pre-accident that did not address any complaints by the applicant of pre-existing conditions. It is not the Tribunal’s role to go through a party’s evidence to make their case for them: see Dooman v. TD Insurance Company, 2025 ONSC 184 at para. 50.
38Additionally, in the OCF-18 dated December 6, 2022, completed by Dr. Bacher, the applicant’s family physician, and Frank Kennedy, a social worker who treated the applicant in connection with the 2009 accident, these medical practitioners checked off “unknown” for prior and concurrent conditions at Part 7 and selected “no” to the question of whether there are any other barriers to recovery at Part 9. I find that this evidence does not assist the applicant’s burden to satisfy the statutory test at s. 18(2) as it does not identify a pre-existing condition that prevents recovery if she is kept within the MIG limit.
39I find that the psychological assessment report of Mr. Eriksen does not address the pre-existing psychological conditions that the applicant has presented relating to the 2009 accident. As well, I did not find this report to be persuasive as there was no record of reviewing the CNRs of the family doctor for the purposes of preparing the report. The document review was limited to six documents, which included an OCF-1, two Disability Certificates (“OCF-3”) and CNRs of Dr. Girish Birdi. The only pre-accident document listed as reviewed was a psychological progress report dated November 1, 2018 of Mr. Frank Kennedy, social worker, and a September 16, 2024 psychiatry assessment report of Dr. Ariel Zielinsky, psychiatrist. The report makes brief reference to the 2009 accident in connection with a prior diagnosis of fibromyalgia, but does not reference pre-existing psychological conditions or otherwise discuss the pre-accident reports listed in the report.
40As well, the assessment was undertaken virtually by a registered social worker, Viktoria Tolmatshov, and indicates it was done under the supervision of Mr. Eriksen. The report is dated December 24, 2024, but the supervisory notes of Mr. Eriksen are dated December 27, 2024 and January 5, 2025, which is subsequent to the report date. I agree with the respondent that this calls into question how Mr. Eriksen, a psychologist, could provide input and supervision on the report after it had already been completed, as a registered social worker is not qualified to make psychological diagnoses. For these reasons, I give little weight to Mr. Eriksen’s report.
41In contrast, I find the s. 44 IE psychiatric report of Dr. Weinstein to be more persuasive in considering the second part of the test under s. 18(2), and specifically whether there is compelling medical evidence that the applicant has a pre-existing medical condition that prevent her from recovery if kept within the MIG limit. Dr. Weinstein conducted a 90 minute in-person assessment. He also reviewed a lengthy list of medical records covering the period from the 2009 accident to present. Dr. Weinstein assessed the applicant on February 11, 2025 and issued his report on March 12, 2025, as well as an addendum dated April 17, 2025 to review additional documents. I considered the applicant’s criticism that Dr. Weinstein did not consider certain documents in his original report, and find that this was addressed by him completing the addendum.
42Dr. Weinstein engaged in a detailed review and summary of pre-accident medical reports on the psychological and psychiatric diagnoses of the applicant. He also listed and considered the psychotropic medications the applicant was taking pre-accident and currently to treat mental health disorders. He found that there did not appear to be any significant differences between her pre- and post-accident conditions, including the medications administered. Dr. Weinstein concluded in both his initial report and addendum that there was no psychiatric diagnosis as a direct result of the subject accident and that substantially all of the current complaints were pre-existing the subject accident.
43It is apparent that she suffered injuries from the 2009 accident. However, evidence of a pre-existing condition alone is not sufficient to justify removal. Rather, the evidence must demonstrate that the pre-existing condition prevents the achievement of maximal recovery in the MIG.
44I find that the applicant has not satisfied the second part of the test under s. 18(2), which requires her health practitioner to determine and provide compelling evidence that the pre-existing medical condition will prevent her from achieving maximal recovery from the minor injury if kept within the MIG limit. It is this part of the test that the applicant has not satisfied and for which she has not persuaded me that she should be taken out of the MIG.
45As noted, this matter was scheduled as a 2-day videoconference hearing in which the applicant was permitted to call witnesses to give evidence at the hearing. The applicant’s subsequent decision to not call any witnesses limited the hearing to oral submissions and references to documentary evidence. Oral submissions do not constitute evidence.
46For these reasons, I find the applicant has not proven on a balance of probabilities that she suffers from an impairment as a result of the accident that warrants removal from the MIG.
47As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.
48The applicant has also argued that the plans is dispute are payable under s. 38 of the Schedule. I will now consider this argument.
The applicant has not established that the denials were non-complaint
49I find that the applicant has not established on a balance of probabilities that any of the respondent’s denials for the plans in dispute were non-compliant with s. 38(8) of the Schedule.
50Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives a plan which goods, services, assessments and examinations that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it considers any of the goods and services to not be reasonable and necessary.
51If an insurer fails to comply with its obligations under s. 38(8) in connection with a treatment and assessment plan, the following consequences set out in s. 38(11) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies; and
ii. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8).
52There are six plans in dispute. While the applicant raised the issue that the denials for the plans in dispute were not in compliance with s. 38(8), she did not specifically address the non-compliance in any detail. The applicant stated that the denials did not provide specific medical reasons why it considers any of the goods and services to not be reasonable and necessary. The applicant entered into evidence denial letters from the respondent that appear to cover five of the six plans in dispute.
53The respondent submits that its denials of the plans were compliant with s. 38(8). In particular, the respondent submits that stating that it believes the MIG applies meets the requirement for providing a medical reason, but that it went beyond that in giving reasons for the denials and/or requesting more medical documentation for consideration.
54While there is little in the applicant’s submissions pointing me to the specifics of the alleged s. 38(8) non-compliance, I agree with the respondent that stating that it believes the MIG applies satisfies the requirement for providing a medical reason in this context and that additional medical documentation was requested.
55Accordingly, I find that the applicant has not proven on a balance of probabilities that any of the respondent’s denials of the plans were non-compliant with s. 38(8) of the Schedule.
The applicant is not entitled to an NEB
56I find the applicant has not established entitlement to an NEB.
57Section 12(1) 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 Co., 2009 ONCA 391 (“Heath”), which generally requires a comparison of the applicant’s pre- and post-accident activities.
58Section 36(2) of the Schedule requires an applicant claiming a specified benefit such as an NEB to “submit a completed disability certificate with his or her application.” Section 36(3) specifies that 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.”
59Section 36(4) states that within 10 business days after an insurer receives an application and a completed OCF-3 for a specified benefit, 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 s. 33(1) or s. 33(2).
60If an insurer fails to comply with s. 36(4) within the applicable time limit, s. 36(6) states that it must pay the specified benefit until a notice in accordance with s. 36(4)(b) is given.
61The applicant submits that on August 10, 2022 an OCF-3 was included along with an OCF-18 submission to the respondent. The applicant argues that the respondent failed to respond to the OCF-3 within 10 business days of receiving the OCF-3 as required by s. 36(4) and is thus required by s. 36(6) to pay an NEB retroactively from the date of disability. The applicant did not produce a completed OCF-3 dated August 10, 2022 or enter it into evidence.
62The respondent counters that the applicant failed to submit a completed OCF-3 relating to her NEB claim within 104 weeks of the accident, as required under s. 36(2). This then triggers s. 36(3), which establishes that an applicant claiming a benefit such as NEB is not entitled to it for any period before an OCF-3 has been submitted. As a result, the applicant is not entitled to an NEB.
63I find that the applicant has not directed me to evidence that a completed OCF-3 was submitted to the respondent in August 2022 or at any time within 104 weeks of the accident. The applicant did produce or enter into evidence an OCF-3 dated August 10, 2022 that she referred to.
64The applicant made reference to the OCF-3 being included within CNRs provided to the respondent on August 9, 2024. Such CNRs, which were included as evidence at the hearing and consisting of over 700 pages of documents, include 3 pages which appear to be an extract from an OCF-3. The applicant did not specifically direct me to those pages, nor did she explain whether a completed OCF-3 exists and how it was provided to the respondent. As such, I do not find this to be persuasive evidence to support the applicant’s position that she submitted a completed OCF-3 within 104 weeks of the accident. As well, I note that this OCF-3 extract found within CNRs was provided nearly 3 months after the 104-week eligibility period ended on May 14, 2024.
65As a result, I find that the applicant has not provided persuasive evidence to demonstrate that she complied with s. 36(2), which mandates that an applicant claiming a specified benefit, such as NEB, file a completed OCF-3. This then means that she is not entitled to an NEB pursuant to s. 36(3), as there is no evidence that a completed OCF-3 was submitted during the 104-week NEB entitlement period.
66In addition, given the absence of a completed OCF-3 in evidence, I find that the applicant has not sufficiently supported her NEB claim with evidence that meets the test as established by Heath.
67Accordingly, I find on a balance of probabilities that the applicant has not established that she is entitled to an NEB.
Interest
68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
ORDER
69For the reasons set out above, I find that:
i. The applicant shall remain in the MIG;
ii. The applicant is not entitled to an NEB;
iii. The plans are not payable pursuant to s. 38 of the Schedule;
iv. The applicant is not entitled to interest; and
v. The application is dismissed.
Released: September 23, 2025
Henry Harris
Vice-Chair