Licence Appeal Tribunal File Number: 24-004936/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:
Thamilavan Sureshkumar
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: John Mazzilli
APPEARANCES:
For the Applicant: Naman Nanda, Counsel
For the Respondent: James Kolumbus, Counsel
HEARD: By way of written submissions
OVERVIEW
1Thamilavan Sureshkumar, (the “applicant”), was involved in an automobile accident on September 25, 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 Security National Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing with their claim for non-earner benefits as they failed to submit an OCF-3 in accordance with s.36(2) of the Schedule.
ISSUES
3The substantive issues 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 limit? Note: The parties agree the MIG limits have not been exhausted and there is $1,164.00 remaining on the day of the case conference.
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 25,2022 to the date of the case conference and ongoing?
iii. Is the applicant entitled to $90.00 ($2,080.00 less $1,990.00 approved) for physiotherapy services, proposed by Health Medica Brampton in a treatment plan/OCF-18 (“plan”) dated March 20, 2023
iv. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by Elite Specialist Group Inc in a treatment plan dated January 13, 2023?
v. Is the applicant entitled to $2,902.79 for a chronic pain assessment, proposed by Elite Specialist Group Inc in a treatment plan dated October 27, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
Withdrawn Issues
4In his written submissions the applicant withdrew substantive issues i, iii, v, and v.
RESULT
5The applicant is barred from proceeding to a hearing for an NEB from October 23, 2022, to September 9, 2024, in accordance with s.36(3).
6The applicant is entitled to an NEB in the amount of $185.00 per week from September 10, 2024, to September 25, 2024, in accordance with s.36(6).
7Interest is owing on the payable portion of the NEB.
8The applicant is not entitled to an award.
ANALYSIS
Preliminary Issue-The respondent’s receipt of the OCF-3
9I find on a balance of probabilities that the applicant is barred from proceeding to a hearing for an NEB from October 23, 2022, to September 9, 2024, in accordance with s.36(3).
10Section 36(2) of the Schedule specifies that an applicant applying for a specified benefit shall submit a completed disability certificate with his or her application under section 32. Section 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”.
11The respondent submits that it did not receive a completed OCF-3 from the respondent until September 10, 2024, and further argues that the applicant’s OCF-1 is dated December 22, 2022, which is after the OCF-3 dated November 26, 2022, which it received on September 10, 2024. It further argues that it did not deny the applicant the NEB and therefore the applicant is unable to appeal the denial. The respondent relies on its letter to the applicant dated December 30, 2022.
12The applicant submits that the correct time period in dispute for the NEB is from October 23, 2022, to September 25, 2024, and that the issue is no longer ongoing in accordance with issue ii listed above as the two-year period has passed. For the purposes of this decision, I will consider the period of entitlement to the NEB to be October 23, 2022, to September 25, 2024.
13The applicant argues that a disability certificate was submitted by Healthmedica to the respondent on November 26, 2022, by way of fax. The applicant further argues that fax confirmation copies and the OCF-3 dated November 26, 2022, was provided to the respondent following the case conference held for this matter on September 9,2024 and that the respondent has failed to provide a response to the applicant in this regard. The applicant relies on the OCF-3 dated November 26, 2022, completed by Ranjit Sohal, chiropractor and the fax transmission from Healthmedica dated November 26, 2022.
14I find that the respondent was not properly served the OCF-3 until September 10, 2024. While the applicant argues that the fax transmission shows that the OCF-3 was delivered to the respondent on November 26, 2022, the applicant has only provided a fax cover sheet that displays a date of November 26, 2022, and a time stamp of 2:43 p.m. There is no detail of what was faxed, it does not show the OCF-3, how many pages were faxed, who it came from and who it was sent to. Both the applicant and the respondent provided the same fax cover page, which lacked all the above details, accordingly I find that the applicant did meet his onus to show he provided the OCF-3 to the respondent before September 10, 2024.
15This is further corroborated by the respondent’s letter to the applicant dated December 30, 2022. This letter confirms that as of December 22, 2022, the respondent received a completed OCF-1 and that it is unable to determine if the applicant is eligible for the NEB as it had not received a completed OCF-3.
16I have considered s.34 of the Schedule, and it’s time based requirements and it is important to note that I was not pointed to a reasonable explanation as to why the applicant did not provide an OCF-3 to the respondent following this letter, and why it was only provided to the respondent on September 10, 2024, approximately two years following the completion of the OCF-3.
17Accordingly, I find on a balance of probabilities that the applicant is barred from proceeding to a hearing for an NEB from October 23, 2022, to September 9, 2024, in accordance with s.36(3)
18For the purposes of my deliberation on the substantive issue of the NEB I will consider the applicant’s entitlement to be From September 10, 2024 (the date the respondent received the OCF-3) to September 25, 2024.
Substantive Issue-Is the applicant entitled to an NEB from September 10, 2024, to September 25, 2024?
19I find on a balance of probabilities that the applicant is entitled to an NEB in the amount of $185.00 from September 10, 2024, to September 25, 2024, in accordance with s.36(6) because the respondent is in breach of s.36(4) of the Schedule.
20Section 36(4) of the Schedule obligates the insurer to take one of three actions within 10 days of receiving a completed OCF-3 (disability certificate). The insurer must: (a) pay the specified benefit; (b) 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; or (c) send a request for more information to the applicant under subsection 33(1) or (2).
21Failure to comply with s.36(4) of the Schedule triggers s.36(6), which states 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 on the day the insurer gives a notice described in s.36(4)(b).
22The applicant submits that the respondent has not requested an Insurer’s examination to determine weather he qualifies for a NEB and that the respondent has not denied the NEB, therefore it is payable.
23I find that the respondent’s failure to provide a denial letter within 10 days of receipt of the OCF-3 namely following September 10, 2022, the date it was served, establishes a breach of s.36(4) because it did not provide the applicant with a response to the OCF-3.
24I find on a balance of probabilities that the applicant is entitled to an NEB in the amount of $185.00 per week from September 10, 2024, to September 25, 2024, in accordance with s.36(6) because the respondent is in breach of s.36(4) of the Schedule.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the NEB is payable, interest is also owing.
Award
26The 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.
27The applicant submits that the respondent has unreasonably withheld payment of the NEB, medical and rehabilitation benefits, and the cost of examinations without giving due consideration to the entire medical records before them. He argues that he has been prejudiced and caused undue hardship because he was denied treatments that have affected his recovery.
28The respondent argues that it denied the applicant treatment based on its insurer’s examination reports, and that it subsequently approved the treatment plans. It argues that the applicant failed to serve an OCF-3 to the respondent despite its requests for one, and that it never denied the applicant entitlement to the NEB. It further argues that the applicant did not produce any particulars for the award claim in accordance with the CCRO.
29I find that the applicant is not entitled to an award because the respondent did not unreasonably withhold payments of benefits. While the applicant was initially kept within the confines of the MIG, the respondent’s actions by removing him from the MIG and approving disputed treatments plans demonstrates that the respondent continually adjusted the file and responded accordingly based on medical evidence. While the applicant is entitled to the NEB for approximately two weeks on a procedural basis, I do not find that this amounts to behavior that warrants an award, because this could have been avoided had the applicant disclosed the OCF-3 to the respondent as requested by the respondent.
30The applicant’s request for an award is denied.
ORDER
31It is ordered that:
i. The applicant is barred from proceeding to a hearing for an NEB from October 23, 2022, to September 9, 2024.
ii. The applicant is entitled to an NEB in the amount of $185.00 per week from September 10, 2024, to September 25, 2024.
iii. Interest is owing on the payable amount of the NEB.
iv. The applicant is not entitled to an award.
Released: February 6, 2026
John Mazzilli
Adjudicator