Licence Appeal Tribunal
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:
E.B.
Applicant
and
TD Home and Auto Insurance Company
Respondent
AMENDED DECISION [AND ORDER]
PANEL:
Avvy Go, Adjudicator
APPEARANCES:
For the Applicant:
E.B.
Dr. Jordan Palmer, Counsel
For the Respondent:
Amanda Faulkner, Counsel
HEARD:
In Writing on: November 5, 2018
OVERVIEW
1The applicant, E.B., was injured in a motor vehicle accident on November 23, 2013, when his vehicle lost control and struck a highway median.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”), including a claim for Income Replacement Benefit (IRB). The respondent denied the applicant’s claim for IRB and for medical benefits. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
3I have been asked to decide the following preliminary issue:
a) Is the applicant statute-barred from appealing the respondent’s denial of his claim for an IRB?
4The substantive issues that I have been asked to determine are:
a) If the applicant is not statute-barred from appealing the denial of an IRB, is the applicant entitled to an IRB?
b) If the applicant is entitled to an IRB, what is the period of time of entitlement and the amount of the benefit?
c) Is the applicant entitled to payment of a medical benefit for physiotherapy services in the amount of $2,117.10, as recommended in a Treatment Plan by Roberta Koch dated February 11, 2016, denied by the respondent February 29, 2016?
d) Is the applicant entitled to receive interest on the overdue payment of benefits?
RESULT
5For the reasons set out below, I find that the applicant’s claim for IRB is statute-barred. I also find that the applicant is not entitled to the medical benefits claimed and thus no interest is payable.
ANALYSIS
Preliminary Issue: Is the applicant statute-barred from appealing the respondent’s denial of his claim for an IRB?
6Under the Schedule, an applicant has a two-year period within which to file an appeal to the Tribunal with respect to a denial of his or her claim. The applicant was first notified that he would not be entitled to IRB in a letter dated February 10, 2014 from the respondent. The applicant did not complete the appeal to the Tribunal until February 27, 2018 and was thus more than two years beyond the limitation period.
7The applicant acknowledged that he would not have succeeded initially on the IRB test because he has returned to work right after the accident. He asked this Tribunal to extend his time for appeal because there was evidence showing his impairment arose within the 104 weeks after the accident.
8As the appeal was filed two years beyond the limitation period, I find that the applicant’s IRB claim is statute-barred.
9Under s.7 of the Licence Appeal Tribunal Act, the Tribunal has the discretion to extend time for appeal if it is satisfied there are reasonable grounds to do so. The applicant is asking the Tribunal to exercise its discretion to extend time for filing the appeal.
10In support of their positions on the issue of whether an extension of time should be granted, both parties relied on AF v. North Blenheim Mutual Ins. Co.1, a decision by Executive Chair Lamoureux in which the Chair outlined four factors to consider in granting an extension of time for appeal:
a) The existence of a bona fide intention to appeal within the appeal period;
b) The length of the delay;
c) Prejudice to the other party; and
d) The merits of the appeal
11Further, these four factors “are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time depends on the specific facts of each case.”2
12I will now consider these factors in light of the facts of this case:
Factor 1: The existence of a bona fide intention to appeal
13The applicant submitted that he returned to work out of financial necessity after the accident, and that he has been unable to work after treatment for his cancer. The applicant submitted it was not reasonable for him to apply for the IRB prior to 2016, when he was able (with restrictions) to return to work at the time. The applicant admitted that he had no intention to apply for IRB within the first two years as the applicant was unaware as to the extent of his injuries and continued to work, albeit in pain.
14To address the issue of intent, I find it helpful to summarize the interactions between the applicant and the respondent since the accident.
15A few months after the accident, the applicant submitted a claim dated January 15, 2014 by Dr. Shahani (a chiropractor) for $2,115.00 to the respondent.
16By a letter dated February 10, 2014, the respondent notified the applicant that he was not entitled to IRB. Another letter dated May 16, 2014 was sent by the respondent to the applicant advising him that his claim would be closed effective May 30, 2014 on the basis that the applicant no longer required treatment.
17About 21 months later, on February 12, 2016, the applicant submitted a claim for physiotherapy services in the amount of $2,117.10, as recommended in a Treatment Plan by Roberta Koch of Koch & Associates dated February 11, 2016, which was denied by the respondent on February 29, 2016.
18The applicant submitted another letter dated May 30, 2016 from Koch & Associates to the respondent inquiring about the Insurer’s Examination (IE) referred to in the respondent’s letter dated February 29, 2016. This was followed by the applicant’s Disability Certificate (OCF-3) dated December 4, 2017 completed by Mohannad Bakri, a physiotherapist (PT).
19The respondent issued a letter dated January 11, 2018 and again on February 15, 2018 advising the applicant that he was not eligible for IRB.
20The applicant’s counsel then submitted a letter dated February 21, 2018 to the respondent enclosing an MRI report and advising the insurer of the applicant’s election of non-earner benefit.
21According to the respondent, other than a letter from Koch & Associates on May 30, 2016, and a completed OCF-1 provided on September 25, 2017, there was also occasional letter from counsel, but that the file remained dormant until December 4, 2017, when the respondent received another treatment plan dated October 13, 2017.
22In addition to the above, the respondent has also included documents with respect to the applicant’s claim history for Employment Insurance (EI) and for the Canada Pension Plan disabilities benefits (CCP-D). The applicant was working at the time of the accident and had to return to work to support his family. The applicant’s EI record indicated that his last day of work was October 12, 2016. The applicant’s EI application indicated that he had applied for sickness benefits as he has left vocal cord immobility post left hemithyroidectomy for left thyroid cancer. The applicant’s employer advised an EI employee that the applicant would be able to return to work to his original position when he became better. The applicant applied for and was given CPP-D. The adjudication summary of the applicant’s CPP-D was based on the applicant’s diagnosis of thyroid cancer.
23Based on the evidence before me, I find that the applicant did not have a bona fide intention to appeal within the limitation period. The correspondence provided by the applicant before February 2018 did not indicate any hint, let alone, an intention to challenge the respondent’s decision to deny IRB. It is unclear when the applicant first formed the intent to appeal in view of the documentary evidence in front of me. The respondent in their submission referred to correspondence from the applicant’s counsel before December 4, 2017, but I do not have the benefit of these documents. The only indication of the applicant’s intent to appeal the refusal of the IRB was therefore his notice of appeal to the Tribunal dated February 27, 2018. I thus consider this a negative factor in determining whether to grant an extension.
Factor 2: The length of delay
24The applicant submitted that he commenced his adjudication “well within 2 years of understanding that despite his cancer being treated, as a result of his accident injuries he could not return to work.” I find this argument unpersuasive as it did not explain why the applicant delayed the filing of the appeal. Further, as noted above, it was unclear when the applicant first formed the intent to file the appeal, or when he realized he was unable to work because of the injuries arising from the accident – and not because of his medical conditions arising from his cancer. A two-year delay in commencing an appeal is simply too excessive without a compelling reason, which the applicant has failed to provide, and will be weighed against the granting of the extension.
Factor 3: Prejudice to the other party
25The respondent submitted that there is prejudice to the insurer who is unable to have the applicant examined with respect to his alleged disability at the time of a proper appeal. The applicant submitted that it was the respondent who has failed to assess the applicant despite Dr. Koch’s office bringing this failure to the respondent’s attention.
26I agree with the applicant that the respondent could have conducted an IE as they had indicated in February 2016. For reasons that are unclear, the respondent did not do so. Thus, the prejudice, if it exists, cannot be attributed solely to the delay of the filing of the appeal by the applicant.
Factor 4: Merits of the Appeal
27In his initial submission, the applicant seemed to suggest that the two year limitation should not apply because notwithstanding the delay, he has evidence to show that the injuries he suffered arose within the first two years after the accident.
28Citing case law, the applicant submitted that the test for entitlement to IRB is medical in nature, and that it is met when “a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so…there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure…”3
29The applicant conceded that he could not have successfully disputed the IRB while he was working for the first two years after the accident. However, based on the treatment plan provided by Koch Associates, and the Disability Certificate of Mr. Bakri dated December 4, 2017, the applicant argued that the injuries as noted were tied directly to the accident. Mr. Bakri’s Certificate indicated that the applicant had suffered a “Dorsal Vertebra D11 fracture” and a substantial inability to perform the essential tasks of his employment, and a complete inability to carry on a normal life as a result of the accident. The applicant submitted these are not the type of injuries which would manifest more than 2 years post-accident; rather, the evidence demonstrated that the impairment arose directly as a result of the accident and the injuries are the type which would arise within the first two years of the accident.
30In reply, the respondent’s submission on the merits of the appeal can be summarized into three main points:
a) That the applicant did not meet the test for IRB as the applicant did not suffer a substantial inability to perform the essential tasks of employment within 104 weeks as required under s.5(1) of the Schedule;
b) That the applicant has not provided objective medical evidence to support his claim; and
c) That the limitation period in the Schedule is not subject to a discoverability principle.
31There is no dispute that the applicant continued to work after the accident until October 2016, which is about three years after the accident. While I accept the applicant’s submission that he had to do so to support his family, the fact that he was working, albeit with limitations, means it would be hard pressed to suggest he suffered a substantial inability to perform the essential tasks of his employment. In fact, I note that the applicant did not provide any information about the specific limitations he had during the 104-week period while he was employed. Further, the evidence suggests that the applicant stopped work in October 2016 not because of injuries arising from the accident, but because of his thyroid cancer.
32While the applicant referred to the Disability Certificate provided by Mr. Bakri dated December 4, 2017, noting a “Dorsal vertebra D11 fracture”, I agree with the respondent that the applicant has not provided any diagnostic images to support this diagnosis, not to mention that the Disability Certificate was prepared four years after the initial accident. Similarly, the applicant did not provide any other medical report, besides the treatment plan of Koch & Associates, to support his claim that he has been suffering from neurological damage and psychological symptoms as a result of the accident.
33I find therefore that the applicant has not discharged the burden that there is some merit to his appeal.
34In view of the lack of the evidence with regard to the bona fide intent for the appeal, the presence of an excessive delay in the appeal, and the applicant’s failure to show there is some merit to his appeal, I find that the applicant has failed to meet the four part test as outlined above, and that the justice of the case does not support the granting of an extension to file the appeal for the denial of the IRB under s. 7 of the LAT Act. Therefore, I find the applicant’s appeal for IRB is statute-barred and I will not exercise my discretion to extend the time for appeal.
Substantive Issue Regarding IRB
35As I have found the applicant is statute-barred from appealing the respondent’s denial of his claim for an IRB and I have decided not to extend the time for appeal, I do not have to address the substantive issues with respect to the IRB.
Substantive Issue: Is the applicant entitled to payment of a medical benefit for physiotherapy services in the amount of $2,117.10, as recommended in a Treatment Plan by Roberta Koch dated February 11, 2016, denied by the respondent February 29, 2016?
36Before I address the applicant’s entitlement to the physiotherapy services, I need to address a procedural issue raised by the respondent.
Is the OCF-18 Form with respect to the disputed Treatment Plan admissible?
37As per the case conference order, the applicant was to submit all his evidence by September 24, 2018. The applicant did not submit the OCF-18 form with respect to the treatment plan by Dr. Koch as evidence until after the respondent had submitted its submission and pointed out that the said OCF-18 form was not in evidence.
38The respondent cited three decisions from this Tribunal to support their position that the failure to put in a treatment plan into evidence is fatal to the claim for goods and services recommended in the plan.4
39The applicant, in reply, submitted that the OCF-form was included in the applicant’s document brief which was submitted to the Tribunal and to the respondent on or before September 13, 2018. Further, there is no prejudice to the respondent since the latter has possessed it for over two years and had responded to the Treatment Plan in their submission.
40While acknowledging that the case conference order did require the parties to submit their evidence by September 24, 2018, the order also specified that the hearing adjudicator will be the final decision-making authority regarding the requirements with respect to evidence and submission. Given the relevance of the OCF-form, and given that the respondent has, in its possession, the OCF-form in question, and has in fact addressed the treatment plan in their submission, I find the fairness of this case would support the admission of the said OCF-18 as evidence.
Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
41The respondent’s main argument in supporting their decision to deny the disputed treatment plan is that the applicant’s injuries fall within the Minor Injury Guideline (MIG). The respondent pointed out that applying the MIG, the applicant is subject to the $3,500 limit. The applicant has less than $2,117.00 remaining in the allowable payout under the MIG.
Definition of MIG and burden of proof
42The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3, collectively referred as “soft tissue injuries” in this decision. S. 18(1) limits the funding of medical and rehabilitation benefits for such injuries to $3,500.
2The applicant has the burden of proving that his injuries fall outside of the minor injuries guideline and are not subject to the $3,500 treatment limit in s. 18 of the Schedule. Specifically, the applicant has the burden of showing that the injuries are not minor injuries as defined by the Schedule, commonly known as “soft tissue injuries”.
43The definition of “minor injury” prescribed by the Schedule does not include any psychological or psycho-emotional impairment and the applicant relies in part on this ground to support his removal from the MIG.
44There is, in evidence, a report from Dr. Shahani that the applicant’s injuries predominantly fall under the MIG, as well as a discharge report from the same chiropractor dated April 14, 2014 that no further intervention was required.
45The applicant relied on the Treatment Plan submitted by Dr. Koch and Karen Day, a physiotherapist who diagnosed the applicant with multiple accident-related injuries, including Whiplash Associative Disorder III (whiplash causing neurological damage), sciatica, and chronic post-traumatic headaches. The plan also opined that the applicant suffered from psychological and functional limitations as a result of the accident, including spinal symptoms “likely to be permanent”.
46But as already noted, other than the disputed Treatment Plan, the only medical document with respect to the applicant’s diagnosis was the Disability Certificate provided by the physiotherapist Mr. Bakri, without any other medical evidence to support his diagnosis. There is also no psychological assessment report. The only other document which may suggest certain psychological issues is the applicant’s CPP-D application in which he related the problem with low concentration and difficulties with sleeping, which he attributed to the operation for his cancer treatment, as opposed to the accident. I find there is insufficient evidence to support the applicant’s claim of psychological limitations as a result of the accident, and I find the applicant has not provided sufficient evidence to show his physical injuries fall out of the MIG.
47Based on the evidence, I find that the applicant’s injuries are predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline.
48I also find the treatment is not reasonable and necessary, given the insufficient medical evidence submitted by the applicant. As such, I find the applicant is not entitled to the medical benefits claimed.
Is the applicant entitled to interest for the overdue payment of benefits?
49In view of my findings above, the applicant is not entitled to interest.
FINDING & ORDER
50The applicant’s application for an IRB and for medical benefit for physiotherapy services in the amount of $2,117.10 is dismissed. The applicant is not entitled to interest.
Released: April 26, 2019
Avvy Go, Adjudicator
Footnotes
- 2017 CanLII 87546 (ON LAT)
- Ibid, at para.30
- Couch on Insurance, 2d (Rev. Ed.), quoted with approval by Chief Justice Laskin in Paul Revere Life Ins. Co. v. Sucharov, 1983 CanLII 168 (SCC), [1983] 2 SCR 541 at 546
- G.P. v. Unifund Assurance Company, LAT 16-003165 dated June 12,2017, K.K. v. Aviva Insurance, LAT 16-000863, dated June 28, 2017, and A.H. v. Belair Direct Insurance Company, LAT 16-001063, dated August 8, 2017