Citation: Bowerman v. Definity Insurance Company, 2026 ONLAT 25-001271/AABS

Licence Appeal Tribunal File Number: 25-001271/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:

Katlin Bowerman

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Thisari Widyalankara, Counsel

For the Respondent: Nicholas Maida, Counsel

HEARD: By way of written submission

OVERVIEW

1Katlin Bowerman, the applicant, was involved in an automobile accident on October 25, 2023, 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 Definity Insurance Company ("the respondent") 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 $400.00 per week from November 7, 2023, to date and ongoing?

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

RESULT

3The applicant is not entitled to an IRB in the of $400.00 per week from November 7, 2023, to November 6, 2025.

4The applicant is not entitled to a post-104 IRB in the amount of $400.00 per week from November 7, 2025, and ongoing.

5As no benefits are owing, interest is not owing.

6The application is dismissed.

ANALYSIS

Pre-104 IRB

7To 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 his employment, which tasks he is unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.

The applicant has failed to establish entitlement to a pre-104 IRB

8I find on a balance of probabilities that the applicant has failed to demonstrate that he meets the test under s.5(1) because he failed to prove that he is unable to substantially perform the essential tasks of his pre-accident employment, namely the operation of a school bus. Accordingly, the applicant is not entitled to an IRB in the of $400.00 per week from November 7, 2023, to November 6, 2025.

9The applicant submits that at the time of the accident he was employed as a charter school bus driver, and his notable duty was to operate a school bus. He submits that within the 104 weeks after the accident he suffered a substantial inability to perform the essential tasks of his employment because he submits that he was unable to sit for prolong periods of time due to pain in his neck, shoulders and back and because he was on medications that would have affected his ability to operate a bus safely.

10The applicant relies on an OCF-3 dated December 7, 2023, completed by Marc Fortin, physiotherapist, who opines that the applicant has suffered from a substantial inability to perform the essential tasks of his employment due to accident-related injuries such as whiplash associated disorder with complaint of neck pain and musculoskeletal signs, and sprain and strain of the lumbar spine. The applicant also relies on the clinical notes and records ("CNRs") of his family medical clinic, Primacy Medical Centre, the CNRs of Rebalance Physiotherapy, the CNRs of Health Sciences North and a letter dated January 4th, 2023, in error (the actual date of the letter is January 4th, 2024) from Marc Fortin.

11The respondent argues that the applicant has not met his onus to prove that he was employed at the time of the accident or that he worked at least 26 of the 52 weeks preceding the accident. It argues that the applicant is silent on how his accident-related injuries have rendered him to be unable to perform the essential tasks of his employment. It argues that the applicant suffers from pre-existing left shoulder pain and that the applicant had accident-related injuries from a March 2023 accident. It further argues that the applicant did not provide an OCF-3 to it until December 8, 2023. The respondent relies on the s.44 reports of Dr. Khaled, physician dated June 27, 2024, and the functional abilities evaluation report of Michael Drinkwater, physiotherapist dated June 27, 2024.

12I find that the applicant has failed his onus to prove entitlement to a pre-104 IRB, namely because he failed to provide or identify the essential tasks of his pre-accident employment as a bus driver, and because he did not specifically address what his post-accident limitations or inabilities are to preform the essential tasks of his employment. In addition, the contemporaneous evidence does not support a finding that the applicant suffered from a substantial inability to perform the essential tasks of his pre-accident employment.

13The applicant attended the emergency department of Health Sciences North on the date of the accident and was discharged due to minor injury sustained in the subject accident. On October 27, 2023, the applicant attended an appointment with his family physician. At this appointment, he was prescribed Advil/Tylenol and Flexeril for 7 days and was advised not to drive or operate equipment after taking Flexeril, however the CNRs from this appointment show that the applicant advised his doctor that he would take it at night so that he can continue to work during the day.

14While I accept that the applicant could qualify for an IRB for the seven day period based on not being able to drive a vehicle or a bus due to adverse effects from medication, the applicant had yet to provide the respondent with a completed OCF-3 at this time and did not provide an OCF-3 or a reason for his non compliance with s.36(3) of the Schedule.

15Section 36(3) informs that an applicant that fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted. Based on the completed OCF-3 the applicant's entitlement to an IRB would only commence on December 7, 2023, which is approximately two and half months after the Flexeril was prescribed. I have Considered Clouthier v. Co-Operators, 2025 ONSC 6798 and it is important to note that I was not pointed to an explanation as to why the applicant did not provide an OCF-3 to the respondent until approximately two and half month's post-accident.

16In addition, the only evidence produced by the applicant that opined the applicant required time off from work was from his physiotherapist Marc Fortin, in the OCF-3 and in a letter dated January 4, 2024, which informs that the applicant has been experiencing significant neck pain with prolonged sitting and requires multiple mobility breaks while driving for extended periods. The letter advised that he would require an additional two weeks off work at this time to ensure symptom relief and a sustainable return to work. I do not find the letter of Marc Fortin persuasive and I placed little weight to this letter because it is inconsistent with the evidence from the applicant's family physician or Health Sciences North, which appear to be his primary health care facilities, and those CNRs do not opine or even allude that the applicant requires any time off from his employment.

17In the absence of compelling corroborating evidence that identify the applicant's essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them, I accept and place to full weight to the report of Dr. Khaled and his medical opinion that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment because Dr. Khaled's medical opinion is consistent with the CNRs of the applicant's family physician.

18I find on a balance of probabilities that the applicant has failed to demonstrate that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment. It follows that the applicant is not entitled to an IRB in the of $400.00 per week from November 7, 2023, to November 6, 2025.

Post 104-IRB

19I find on a balance of probabilities that the applicant is not entitled to a post-104 IRB in the amount of $400.00 per week from November 7, 2025, and ongoing.

20Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after 104 weeks of disability. This requires the applicant to show he suffers, because of the accident, a complete inability to engage in any employment or self-employment for which he is reasonable suited by education, training, or experience.

21The applicant did not provide the Tribunal with submissions that his suffers from a complete inability to engage in any employment or self employment for which he is reasonably suited by education, training or experience. It follows that the applicant has failed in his onus to prove entitlement to a post 104 IRB in the amount of $400.00 per week.

22I find on a balance of probabilities that the applicant is not entitled to a post 104 IRB in the amount of $400.00 per week from November 7, 2025, and ongoing.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.

ORDER

24It is ordered that:

i. The applicant is not entitled to an IRB in the of $400.00 per week from November 7, 2023, to November 6, 2025.

ii. The applicant is not entitled to a post-104 IRB in the amount of $400.00 per week from November 7, 2025, and ongoing.

iii. As no benefits are owing, interest is not owing

iv. The application is dismissed.