Licence Appeal Tribunal
Tribunal File Number: 17-003686/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:
S. P.
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
PANEL:
Aggrey Msosa, Adjudicator
APPEARANCES:
For the Applicant:
Adam Stevenson
For the Respondent:
Shelby Chung.
HEARD:
In Writing on: November 20, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on June 15, 2014 and as a result of the motor vehicle accident, she claims she suffers from pain in her neck and back, left shoulder and blurriness in her vision when driving. She applied for accident benefits from the respondent, Gore Mutual Insurance Company, under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).
2The respondent denied her application for treatment because the applicant failed to submit a completed and signed application for benefits to the respondent within 30 days after receiving the application forms, and the respondent argues that the applicant has not provided a reasonable explanation for the delay. Therefore, the treatment and assessment plan was deemed to be not reasonable and necessary. The respondent argues that the applicant is statute barred from proceeding with the appeal because of her failure to submit the application on time. The applicant disagreed and appealed the denial to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3A case conference was held on August 22, 2017, but the parties were unable to resolve the issues in dispute and a written hearing was ordered.
ISSUES
4The following issues in dispute are to be decided:
i. Is the applicant’s claim for statutory accident benefits barred from proceeding, pursuant to section 55(1) 1. and 32(5) of the Schedule?
ii. Is the applicant entitled to receive a medical benefit in the amount of $3,712.74 for chiropractic treatment recommended by AIM Medical Clinic in a treatment plan submitted on June 8, 2015, denied by the respondent on June 22, 2015?
iii. Is the applicant entitled to interest for any overdue payment of benefits?
RESULT
5After reviewing the parties’ submissions and evidence and for the reasons that follow:
i. I find that the applicant’s appeal is not statute-barred from proceeding.
ii. I find that the applicant is entitled to receive a medical benefit in the amount of $3,712.74 for chiropractic treatment recommended by AIM Clinic in a treatment plan dated June 8, 2015.
iii. The applicant is entitled to interest for the treatment and assessment plan as the benefit is overdue.
ANALYSIS
(i) Is the applicant’s claim for benefits statute-barred from proceeding?
6No, I find that the applicant is not statute-barred from proceeding with her application as she has provided a reasonable explanation for the delay. In submissions, the respondent raised s. 32(5) of the Schedule as a defence. Section 32(5) states that the applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
7The respondent argues that the applicant failed to submit a completed and signed application within the period prescribed by the Schedule, and has not provided a reasonable explanation for the delay. The respondent states that the application and forms were sent to the applicant’s known address and advised the applicant that the forms must be completed, signed and returned within 30 days, in accordance with s. 32 of the Schedule. The respondent noted in its correspondence that failure to return the forms within the specified period may result in the rejection of the applicant’s claim unless she provided a reasonable explanation for the delay.1
8On August 13 and 24, 2014, the respondent attempted to contact the applicant by phone to follow up on her injuries, but was unable to reach the applicant. A voicemail was left for the applicant to call the respondent but she failed to do so. The respondent followed up with a letter advising the applicant that her file would be closed if she did not contact the respondent by September 27, 2014. There was no response from the applicant and the file was administratively closed on September 30, 2014.2
9On June 11, 2015, the respondent received an Application for Accident Benefits (“OCF-1”) from the applicant. In response, the respondent advised the applicant that it was unable to determine her eligibility for accident benefits without an explanation in writing for the delay in filing an application. The respondent received a letter from the applicant dated July 8, 2015 providing an explanation to why she submitted the OCF-1 late. On July 16, 2015, the respondent acknowledged receiving the letter but did not accept the applicant’s explanation as it appeared that the applicant made a conscious, informed decision based on the advice of her lawyer not to apply for accident benefits in order to not jeopardize her Workplace Safety and Insurance Board (“WSIB”) claim. The respondent informed the applicant that, pursuant to s. 32(10) of the Schedule, she had not fulfilled the reasonable explanation criteria and it was therefore unable to consider her claim for accident benefits.3
10The applicant’s position is that the delay in submitting an application was due to her expectation that her accident symptoms would resolve without additional treatment between May 2014 and July 2015. The applicant argues that the resolution of her symptoms without treatment seemed likely until May 2015, when the applicant experienced exacerbated pain. Additionally, the applicant asserts that she did not receive the application forms that were sent to the address she shared with her husband because the applicant and her husband separated and she moved out of the home in September 2014. The applicant argues that the respondent’s representative that she spoke to did not advise her about the 30 days rule when she was informed that application forms would be sent to her.
11I find that the applicant’s explanation for the delay in submitting an application was reasonable. I have not found any evidence in the respondent’s submissions that the applicant was advised about the 30 days rule when the respondent’s representative spoke to the applicant on June 24, 2015. Rather, that information was included in the application package that was sent to the applicant which she never received, as she had separated from her husband and had moved out of their former shared residence. In my view, the respondent’s position in rejecting the applicant’s explanation for the delay without investigating the matter further is unreasonable. Instead, I find that the respondent dismissed the application on a technicality, reasoning that the “applicant made a conscious, informed decision based on the advice of a paralegal not to apply for accident benefits in order not to jeopardize her WSIB claim.”4 The respondent has not adduced any evidence in support of this claim.
12Section 34 of the Schedule states that a person’s failure to comply with the time limit does not disentitle the person to a benefit if the person has a reasonable explanation. For these reasons, I find that the applicant had a reasonable explanation for failing to comply with the time limit and is not statute-barred from proceeding with her application as a result.
(ii) Is the applicant entitled to receive a medical benefit in the amount of $3,712.74 for chiropractic treatment recommended by AIM Medical Clinic in a treatment plan submitted on June 8, 2015?
13On the evidence, I find that the treatment plan is reasonable and necessary because the plan is proportional to her impairments and pain reduction is a legitimate goal for treatment.
14The June 8, 2015 treatment and assessment plan (OCF-18) submitted by Dr. John Peever, Chiropractor, describes the applicant’s injuries related to the accident as “whiplash associated disorder (WAD 3) with complaint of neck pain with neurological signs, other headache syndromes, dislocation, sprain and strain of joints and ligaments of thorax, sprain and strain of lumber spine. The injuries exacerbated the applicant’s existing low back injury.”5
15The goal of the proposed treatment plan was pain reduction, increase in strength, increased range of motion and return to activities of normal living. Barriers to recovery were identified as: pain/stiffness, especially in neck and upper back, numbness into hands and that the applicant has thoughts of suicide and requires psychological help.
16I find that the treatment plan is reasonable and necessary because the applicant has pain impairments resulting from the accident. The goal of the treatment plan is proportional to treating her impairments, which I find are continuous and have re-emerged. The goals are reasonable, in my view, due to the applicant’s pain and range of motion issues post-accident and are therefore necessary to treating the applicant’s impairments. I note that this treatment plan was made on the recommendation of a licensed medical professional at AIM Kitchener, with both the diagnosis from the accident and the goal of treatment identified. I agree with the applicant’s submission that in the absence of any medical opinion to the contrary, the treatment plan dated June 8, 2015 is reasonable and necessary.
(iii) Is the applicant entitled to interest for any overdue payment of benefits?
17As I have found that the applicant is entitled to benefits, interest is also payable pursuant to s. 51 of the Schedule.
CONCLUSION
18The applicant’s claim is not statute-barred from proceeding.
19The applicant is entitled to receive a medical benefit in the amount of $3,712.74 for chiropractic treatment recommended by AIM Clinic in a treatment plan dated June 8, 2015.
20The applicant is entitled to interest, pursuant to s. 51 of the Schedule.
Date of Issue: January 21, 2019
___________________________
Aggrey Msosa, Adjudicator