Licence Appeal Tribunal File Number: 24-003214/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:
Bibi Habib
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Paul Giuliano, Counsel
For the Respondent:
Kara Ramnaraine, Counsel
HEARD: In Writing
OVERVIEW
1Bibi Habib, the Applicant, was involved in an automobile accident on November 9, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The Applicant submits that she was a passenger in the vehicle involved, and the driver of the vehicle negligently engaged her windshield wipers while she was entering the vehicle, causing dangerous fluids to enter her eyes, causing serious damage to her eyes and vision.
3Further, that due to these accident-related injuries, she has been unable to work since February 7, 2023, to present.
ISSUES
4The issues in dispute are:
i. Is the Applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 7, 2023, to date and ongoing?
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
5I find that the Applicant is not entitled to IRBs.
6I find the Applicant is not entitled to an award.
7I find the Applicant is not entitled to interest.
ANALYSIS
IRB (notices under the Schedule)
8Each party raised different non-compliance issues with the notice requirements relevant to the IRB claim. I find that the most appropriate sequence to analyze the arguments is as follows:
i. The Respondent submits that the Applicant failed to comply with s. 36(2) of the Schedule because she did not submit a disability certificate (“OCF-3”) prior to the period for the IRBs being claimed.
ii. The Applicant submits that the Respondent’s denial of IRBs fails to comply with s. 36(4) of the Schedule because it failed to consider the ongoing and worsening nature of the Applicant’s injuries. Further, because it wrongfully stated that the Applicant’s injuries are soft tissue in nature.
iii. The Respondent submits that the Applicant failed to respond to its requests for information under s. 33(1) because the requested documents were not submitted within the required 10-day period.
9For the reasons that follow, I find:
i. The Applicant was not compliant with s. 36(2) of the Schedule because she failed to submit an OCF-3 before the IRB period being claimed and the IRB payment period has been adjusted accordingly.
ii. The Respondent was compliant with s. 36(4) of the Schedule because the denials meet the requirements for compliance.
iii. The Applicant was compliant with s. 33(1) of the Schedule because she provided a reasonable explanation for the late production of documents, however, this does not affect the overall IRB entitlement analysis.
S. 36(2) non-compliance
10I find the Applicant was not compliant with s. 36(2) because she failed to submit an OCF-3 before the IRB period being claimed.
11S. 36(2) of the Schedule requires an Applicant to submit a completed OCF-3 with their application under s. 32. An Applicant who fails to submit an OCF-3 is not entitled to a specified benefit (like an IRB) for any period before the OCF-3 is submitted. Where an OCF-3 is submitted beyond the time period in dispute, the IRB is not payable for the disputed period.
12The Respondent submits that the Applicant is claiming IRBs for the period of February 7, 2023, and ongoing. However, she did not submit her OCF-3 until on or around December 22, 2023, which is over one year following the accident despite receiving the application package and the accident benefits coverage summary provided to the Applicant on February 20, 2023, following receipt of the OCF-1.
13The Respondent submits that on February 20, 2023, it advised the Applicant that she had 7 days to notify of her intention to apply for benefits.
14Further, on March 4, 2024, the Respondent held her in s. 33 non-compliance for failing to provide the requested records and advised that no IRBs were payable for the period following March 1, 2024, until the records were produced along with a reasonable explanation for the delay. The Respondent further submits that the Applicant has not provided a reasonable explanation for the late submission of her OCF-3.
15The OCF-3 in question is dated December 21, 2023, and appears to be received by the Respondent on December 22, 2023. I agree with the Respondent that this is roughly 1-year post-accident. The Applicant has not directed me to evidence addressing the Respondent ’s submissions regarding the OCF-3 submission date.
16I find that the period of the IRB claim must begin on the day that the OCF-3 was received by the Respondent, and therefore the IRB time period in dispute is changed to December 22, 2023, to ongoing.
17S. 33 is analyzed below.
S. 36(4) non-compliance
18I find the Respondent’s denial of the IRB was compliant with s. 36(4) of the Schedule.
19The Applicant submits that the Respondent’s denial of IRBs fails to comply with s. 36(4) of the Schedule, because its denial is based on outdated information and it failed to reevaluate her ongoing and worsening injuries. Further, the Applicant submits that the Respondent has failed to provide the Applicant with any medical reason to justify the denial.
20More specifically, the Applicant submits that the Respondent’s denial reasons listed “soft tissue injury” when this is false, because the Applicant suffered chemical burns to her eyes and corneas, and this is not a soft tissue injury.
21Further, the Applicant submits that as her injuries continued to worsen, the Respondent needed to complete updated s. 44 assessments to gather more accurate medical information, which it did not.
22The Respondent submits that it provided the Applicant with clear and unequivocal denials, citing “medical and other reasons” in accordance with s. 36(4) of the Schedule, and in accordance with the Divisional Court’s description of “baseline standards” that characterize a sufficient notice.
23I find that the Respondent was compliant with s. 36(4) of the Schedule, because the denials meet the standard of technical compliance under the Schedule. Further, at paragraph 13 of Sietzema v. Economical, 2014 ONCA 111, the Court of Appeal reaffirmed its earlier ruling in Turner v. State Farm, that “[t]he purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such a notice.”
24Therefore, I find that, while the Applicant may disagree with the correctness of the rationale for denying the IRBs, that is not the test for evaluating the Respondent’s compliance with s. 36(4). Rather, the substantive challenge to the denial is better situated in the analysis of whether the Applicant has met their burden of proving entitlement to the IRBs.
S. 33(1) non-compliance
25I find that the Applicant was compliant with s. 33(1) of the Schedule.
26S. 33(1) of the Schedule states that an Applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the Applicant’s entitlement to a benefit.
27S. 33(6) of the Schedule states that an insurer is not liable to pay any benefit in respect of any period during which the insured person fails to comply with s. 33(1) or s. 33(2) of the Schedule.
28The Respondent submits that due to the Applicant’s ongoing s. 33(1) non-compliance, and failure to provide any reasonable explanation for the delay, she should not be entitled to IRBs beyond March 1, 2024.
29The Respondent submits that it made a s. 33(1) request for medical records in a letter dated February 14, 2024, and detailed the consequences of non-compliance.
30On March 4, 2024, the Respondent held the Applicant in s. 33(1) non-compliance for failing to provide the requested records and advised that no IRBs were payable for the period following March 1, 2024, until the records were produced along with a reasonable explanation for the delay.
31The Respondent submits that the Applicant produced the records from the Peterborough Ophthalmology Clinic on October 25, 2024. However, it submits that the Applicant has given no reasonable explanation for the delay, outside of attributing some delay to her former counsel. Further, that the Applicant produced no evidence to demonstrate that any steps were taken to obtain the records.
32The Respondent submits that the Applicant’s non-compliance resulted in its inability to adjudicate the claim on a contemporaneous basis.
33The Respondent further submits that the Applicant has failed to provide her walk-in clinic records and hospital records pertaining to the accident outside of ophthalmology, with no reasonable explanation.
34In an email dated October 25, 2024, the Applicant emailed the Respondent to apologize for her former counsel, who did not provide information as requested by the Respondent. She writes:
“If it helps, I found it very challenging to connect with him/his team for answers/updates. Also, please note that the treatment delays were because I started my treatment with Dr. J. D. Hurst (Ophthalmologist) in Peterborough (Nov 11, 2022, 2-days post-chemical eye injury incident on Nov 9, 2022) then moved to Brantford. Dr. Hurst had made a referral to the Cornea Specialist, Dr. William Jackson, who is also at the Peterborough Clinic, but I was not able to secure an appointment before leaving Peterborough on April 2, 2023. I attended with Dr. Jackson in May 2023 and because he was slated to retire soon, plus the overnight travel required (hotel stay) to attend with him from Brantford-to-Peterborough, he recommended a referral to Dr. Teichman (Prism Eye Institute, Oakville). First appointment with Prism Eye Institute was not until April 2024 with subsequent appointments since.”
35I find that this is a reasonable explanation for the Applicant’s s. 33(1) non-compliance. There were evidently challenges with communication with her former representative, changes with representation as well as multiple medical referrals.
36Although the Applicant provided a reasonable explanation for her late production of documents for the Respondent’s s. 33(1) request, this alone does not entitle her to IRBs. IRB entitlement is analyzed below.
IRB entitlement
37I find the Applicant is not entitled to IRBs for the period of December 22, 2023, to ongoing.
Pre-104 entitlement
38To 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.
39The Applicant submits that due to her accident-related injuries, she has been unable to work since February 7, 2023, to present.
40The Applicant relies on an employer’s confirmation of income form (“OCF-2”) from Peterborough Regional Health Centre. The OCF-2 states that the Applicant was employed as a disability case manager from September 26, 2022, to December 12, 2022.
41The Applicant further relies on clinical notes and records from Dr. Hurst, ophthalmologist, at the Peterborough Clinic, from November 2022 to January 2023. The Applicant complained of continued burning and throbbing both in her eye and “underneath” her upper eye lid. She was experiencing crustiness in her eye. The problem was getting worse. She was experiencing new symptoms such as spasms. She had tried “blue light glasses” but they were not assisting her. As a result of her continued and worsening complaints, Dr. Hurst’s impression at that time was that there was still significant irritation and discomfort. He recommended “pulse steroids.” He provided her with a month’s worth of samples for daily application to try to obtain some relief.
42The Applicant submits that it is clear her injuries were worsening rather than improving.
43The Applicant relies on an OCF-3 completed by Dr. Asadi, from the Conklin Medical Center from December 21, 2023, which lists the following injuries:
i. Chemical eye injury
ii. Essential hypertension
iii. Blurred vision
iv. Headaches
v. Light sensitivity
vi. Stinging/spasms in the eyes
vii. Palpitations
44The Applicant submits that in part 6 of the OCF-3, the assessor confirmed that she was unable to perform the essential tasks of her employment at the time of the accident and that she could not return to modified duties. The assessor also states that the Applicant suffered from a complete inability to carry on a normal life. She was also unable to carry out her part time university courses.
45The Applicant further submits that the OCF-3 assessor listed the numerous investigations that had already taken place, including those of Dr. Hurst, ophthalmologist, Dr. Jackson, cornea specialist and Dr. Teichman, another cornea specialist. The assessor could not provide a timeline other than “more than 12 weeks” due to the nature of the chemical burn.
46The Applicant submits that she has continued to attend with numerous doctors and specialists until the present day. In March of 2024 the Applicant began treatments and investigations at the Prism Eye Institute. In the course of her treatment at the Prism Eye Institute, the Applicant listed her symptoms and the ramifications of her injuries. She reported swelling (of her eyes), light sensitivity, pain, blurred vision, black spots, inability to use her phone, difficulty viewing computer screens as well as a number of other symptoms over 1.5 years after the accident.
47The Respondent submits that even if the Applicant is found procedurally entitled to the IRB, she has not submitted any evidence that she is substantially entitled to IRBs as a result of the accident. Further, that the Applicant has not provided any evidence that she was substantially unable to complete the essential tasks of her employment following the accident in accordance with s. 5(1)i of the Schedule.
48The Respondent submits that the Applicant is solely relying on an OCF-3 and her own self-reported complaints, which is not sufficient evidence. Further, that she continues to drive, exercise, travel and perform ADLs.
49The Respondent submits that the Applicant was evidently capable of performing the essential tasks of her employment given her swift return to work. It further submits that the Applicant admitted on at least two occasions (i.e. via e-mail to PRHC and in the phone statement) that her inability to work following the accident was due to interpersonal conflict, and not because of her alleged accident-related impairments. However, I was not specifically pointed to this evidence.
50I was directed to the Applicant’s Application for Accident Benefits (“OCF-1”) dated February 15, 2023. In part 8, the Applicant is asked if her injuries prevented her from returning to work and she selected “no”. Further, in part 3, when asked if she was able to return to her normal activities following the accident, the Applicant selected “yes”.
51I have considered the parties’ submissions. I find the Applicant has not met her onus to meet the requirements of the pre-104 test as mentioned above. I acknowledge the Applicant is experiencing light sensitivity, pain, blurred vision, black spots, inability to use her phone and difficulty viewing computer screens. However, I was not pointed to the specific tasks of her employment and how these injuries substantially prevent her from completing the essential tasks of her pre-accident employment.
52I acknowledge that the Applicant has included a general job description within the evidence; however, this is not sufficient evidence to specifically establish the essential tasks of her employment, which tasks she is now unable to perform and to what extent she is unable to perform them.
53Further, I acknowledge the OCF-3 assessor who concluded that the Applicant suffered from a complete inability to carry on a normal life. However, there was not enough detail provided by the Applicant to identify the essential tasks of their employment, which specific tasks she is unable to perform and to what extent she is unable to perform them.
54Further, the Applicant indicated in her OCF-1, roughly three months after the accident, that her injuries from the accident have not prevented her from returning to work, or normal activities. While I acknowledge the Applicant’s submissions about her injuries worsening and ongoing, I find she has not met her onus to connect this information to the pre-104 test and to clarify at what point she was no longer able to perform the essential tasks of her employment, and to what extent.
55The Applicant bears the burden of proving, on a balance of probabilities, that she meets this test. I do not find she has met her onus. Therefore, on a balance of probabilities, I do not find that the Applicant meets the pre-104-week test.
Post-104 entitlement
56To receive payment for a post-104-week IRB under s. 6 of the Schedule, the Applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
57As the Applicant has not met their onus to establish the pre-104 test, there is no post-104 entitlement analysis, pursuant to Paesano v. Coseco Insurance Company, 2025 ONSC 3245 at para. 41 (Div. Ct.).
Interest
58As IRBs are not payable, no interest is owing.
Award
59I find that no award is owing.
60Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the Applicant to prove, on a balance of probabilities, that the Respondent’s conduct meets this threshold.
61The Applicant made no specific submissions about the award. However, they do submit that the Respondent failed to treat the Applicant fairly in the adjustment of the IRB claim.
Failure to treat the Applicant fairly in the adjustment of the IRB claim
62The Applicant submits that the Respondent did not employ any s. 44 assessors, failed to continue to adjust the accident benefits claim fairly and treat the Applicant, which they are obligated to do even after there has been a denial. Further, that the Respondent has a duty to continue to adjust the file and must be prepared to reverse a decision/denial when new information is presented.
63The Applicant submits that the Respondent appears to base its denials for IRBs on what was stated in the OCF-1, which was only 3 months after the accident. Further, that it is clear from the medical evidence that the Applicant’s condition worsened over time, leading to a scenario where her injuries prevented her from working.
64The Applicant submits that the file should have been reassessed and readjusted based on the fact that the Applicant’s reported injuries are unrelenting and worsening.
65The Applicant further submits that the Respondent, in its letter dated January 9, 2024, stated that the Applicant’s injuries were “soft-tissue in nature”, and this is inaccurate because she suffered chemical burns to her eyes and corneas, which is not a soft tissue injury.
66The Respondent submits that on November 29, 2022, Dr. Hurst opined that the Applicant’s chemical eye injury had healed, and he recommended that she continue with artificial tears. However, I was not pointed to the page in the Respondent ’s evidence where this is stated.
67I find that as no IRBs are payable, no award is owing.
68However, I do agree with the Applicant that the injuries she obtained as a result of the subject accident are chemical burns and are not soft tissue in nature. I further agree with the Applicant that the Respondent has failed to treat and adjust this matter as the Applicant has established that her injuries are worsening and ongoing.
69However, as no IRBs are payable, no award is owing.
ORDER
70I find that the Applicant is not entitled to IRBs.
71I find that the Applicant is not entitled to interest.
72I find that the Applicant is not entitled to an award.
Released: April 13, 2026
Sarah Guergis
Adjudicator