E.L. v. Certas Direct Insurance Company, 2019 CanLII 72195

Date: 2019-06-19

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.L.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION ON PRELIMINARY ISSUES

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: E.L.

For the Respondent: Kevin Griffiths, Counsel

HEARD In writing on: November 5, 2018

OVERVIEW

1E.L., an Ontario resident, was involved in an automobile accident on March 16, 2013 in Michigan, USA (the “accident”).

2On January 10, 2018, E.L. submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for 78 benefits in dispute with the respondent, Certas Insurance Company (“Certas”).

3A resumption of the case conference was held on June 18, 2018. At that time, both E.L. and Certas each raised three preliminary issues, which then proceeded to a written hearing before me on November 5, 2018.

PRELIMINARY ISSUES

4The following are the preliminary issues raised by E.L. to be decided:

1. Is E.L. entitled to the amount of benefits under the Michigan Insurance Code of 1956 (the “Michigan Code”) or under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)? Is E.L. entitled to re-elect benefits?

2. Do the procedures in the Michigan Code or the Schedule apply to adjusting E.L.’s benefit claims?

3. Can E.L. be found to be catastrophically impaired without submitting an application for catastrophic determination to Certas and, if so, has she been “deemed” catastrophically impaired by Certas?

5In its submissions, Certas withdrew certain issues that it had previously raised. As a result, the following are the preliminary issues remaining raised by Certas to be decided:

4. Is E.L. precluded from proceeding with her application to the Tribunal to determine her entitlement to attendant care benefits, income replacement benefits and medical benefits due to her failure to attend insurer’s examinations requested by Certas?

5. Is E.L. barred from pursuing her claim to the Tribunal for the following benefits as she failed to apply to the Tribunal within the two year limitation period for the following benefits:

a) Is E.L. entitled to receive a medical benefit in the amount of $660.00 for chiropractic services recommended by Dr. Natalie Cervini in a treatment plan dated March 6, 2014, and denied by Certas on March 20, 2014?

b) Is E.L. entitled to receive a medical benefit for optometric services, recommended by Dr. Daniel Cunningham, as follows:

(i) $650.00 in an expense claim form dated July 2, 2015, and denied by Certas on December 12, 2015?

(ii) $390.00 in an expense claim form dated November 29, 2015, and denied by Certas on December 1, 2015?

(iii) $85.00 in an expense claim form dated July 2, 2015, and denied by the respondent on December 12, 2015?

c) Is E.L. entitled to receive a medical benefit in the amount of $860.00 for dental services provided by Dr. Jennifer Kerr in an expense claim form dated July 2, 2015, and denied by Certas on December 12, 2015?

d) Is E.L. entitled to receive a medical benefit in the amount of $1,005.85 for physiotherapy services provided by Ann Marie Keough in an expense claim form dated November 29, 2015, and denied by Certas on December 1, 2015?

e) Is E.L. entitled to payment for the cost of an examination in the amount of $250.00 for an audiometric assessment, provided by Dr. Paige Pierozynski in an expense claim form dated November 29, 2015, and denied by Certas on December 1, 2015?

f) Is E.L. entitled to a payment for transportation to and from treatment sessions as follows:

(i) $624.47, provided by R.L., which was submitted on an expense claim form dated July 2, 2015, and denied by Certas on December 12, 2015?

(ii) $677.27, provided by E.L., which was submitted on an expense claim form dated July 2, 2015, and denied by Certas on December 12, 2015?

(iii) $595.98, provided by E.L., which was submitted on an expense claim form dated November 29, 2015, and denied by Certas on November 30, 2015?

6. Is E.L. barred from pursuing her claim to the Tribunal on the basis that Certas did not receive an application for the following benefits:

a) Is E.L. entitled to receive weekly caregiver benefits for the period from March 16, 2013 to date and ongoing for care for her animals?

(i) If “yes,” what amount of weekly caregiver benefits is E.L. entitled to?

b) Is E.L. entitled to receive monthly attendant care benefits for the period from March 17, 2017 to date and ongoing?

(i) If “yes”:

a. What amount of monthly attendant care benefits is E.L. entitled to?

b. What is the amount of attendant care benefits incurred by E.L. and is it deemed to have been incurred?

c) Is E.L. entitled to receive a rehabilitation benefit in a yet to be determined amount for case manager services provided by herself?

d) Is E.L. entitled to receive payment for the cost of her own accounting services in the amount of $12,400.00 (based on $2,000.00 per month from March 16, 2013 to the date of the case conference) which was not submitted to Certas?

e) Is E.L. entitled to receive payment for the cost of hiring a property manager for E.L.’s rental properties in the amount of $200.00 per month from April 2013 to date?

f) Is E.L. entitled to receive payment in the amount of $174.59 for the cost to provide an assessment of property management services conducted by Rent 4 All Property Management which was not submitted to Certas?

g) Is E.L. entitled to receive a medical benefit for hearing aids and a dispensing program recommended by Christine Sonneveld, hearing technician, as follows:

(i) $6,340.00, in a treatment plan dated December 1, 2015 (no denial by Certas)?

(ii) $6,340.00, in an expenses claim form dated January 1, 2016 (no denial by Certas)?

h) Is E.L. entitled to receive a medical benefit for physiotherapy services provided by Ann Marie Keough as follows:

(i) $150.00 in an expense claim form dated February 4, 2016 (no denial by Certas)?

(ii) $135.00 in an expense claim form dated February 4, 2016 (no denial by Certas)?

i) Is E.L. entitled to receive a medical benefit in the amount of $135.00 for vestibular rehabilitation services provided by Ann Marie Keough in an expense claim form dated February 4, 2016 (no denial by Certas)?

j) Is E.L. entitled to receive a medical benefit for dental services provided by Dr. Sorge as follows:

(i) $227.00 in an expense claim form dated October 29, 2017 (no denial by Certas)?

(ii) $324.00 in an expense claim form dated October 29, 2017 (no denial by Certas)?

k) Is E.L. entitled to receive a medical benefit for dental services in the amount of $76.78 ($400.00 claimed minus $323.22 paid) provided by Dr. Jennifer Valente in a treatment plan dated November 27, 2013, and denied by Certas on February 13, 2014?

l) Is E.L. entitled to payment for eyeglasses in the amount of $1,285.00, recommended by Dr. M. Moussa in an estimate dated March 28, 2014 and submitted on July 18, 2014 (no denial by Certas)?

m) Is E.L. entitled to a payment for transportation as follows:

(i) $402.27 to and from treatment sessions, provided by E.L., which was submitted on an expense claim form dated February 4, 2016 (no denial by Certas)?

(ii) $542.99 to brain injury association meetings recommended by Dr. Saadia Ahmad, submitted on an expense claim form dated October 29, 2017 (no denial by Certas)?

RESULT OF THE PRELIMINARY ISSUES

6I find that:

(i) the amount of benefits that apply in this matter are those set out in the Schedule, and not those under the Michigan Code;

(ii) E.L. is not eligible to “re-elect” which benefit amounts apply pursuant to s. 59 of the Schedule;

(iii) the procedures in the Schedule for claiming and adjusting E.L.’s benefit claims apply to this matter;

(iv) E.L. cannot be found to be catastrophically impaired without submitting an application for catastrophic determination (“OCF-19”) to Certas and E.L. has not been “deemed” catastrophically impaired by Certas;

(v) E.L. is able to proceed with her application to the Tribunal for the following benefits: 5(b)(i), 5(b)(ii), 5(b)(iii), 5(c), 5(d), 5(e), 5(f)(i), 5(f)(ii), 5(f)(iii) and 6(k) as set out in paragraph [5] above; and

(vi) E.L. is precluded from proceeding to the Tribunal for a determination of her entitlement to the following benefits: 5(a), 6(a), 6(b), 6(c), 6(d), 6(e), 6(f), 6(g)(i), 6(g)(ii), 6(h)(i), 6(h)(ii), 6(i), 6(j)(i), 6(j)(ii), 6(l), 6(m)(i) and 6(m)(ii) as set out in paragraph [5] above.

PROCEDURAL ISSUE

7On October 29, 2018, E.L. sent an email to the Tribunal and to Certas requesting that Certas’ submissions on the preliminary issues that were due on August 31, 2018 and on October 29, 2018 be excluded from the record because physical copies of these submissions were served on her late. E.L. submits that she did not receive the hard copy of Certas’ submissions due August 31, 2018 until September 4, 2018. E.L. did not provide the date when she received a hard copy of Certas’ submissions due October 29, 2018, but confirmed receipt of these materials via email on October 29, 2018. E.L. argues that allowing Certas’ submissions would be providing Certas an opportunity to “double dip,” as it would have had an opportunity to “preview” E.L.’s submissions, as she alleges her submissions were served prior to Certas serving its submissions.

8No Notice of Motion was filed by E.L. as required by Rule 15.1 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). Additionally, a motion hearing was not scheduled to address E.L.’s request. However, I am prepared to deal with E.L.’s request as part of this preliminary hearing.¹

9For the reasons that follow, E.L.’s request is denied and, thus, I considered Certas’ submissions and attached evidence, due August 31, 2018 and October 29, 2018, in determining the preliminary issues raised by both parties in this matter.

10In response to E.L.’s request, Certas submitted that, in addition to forwarding the documents via overnight courtier on preliminary issues 5 and 6 as set out in paragraph [5] above, it also emailed these documents to E.L. on the due dates of August 31, 2018 and October 29, 2018.

11E.L. has not provided any evidence that she was prejudiced by the delivery of Certas’ submissions due August 31, 2018 and October 29, 2018. Furthermore, I do not agree that Certas receiving submissions on preliminary issues 1, 2 and 3 as set out above before Certas served its submissions on E.L. on preliminary issues 4, 5 and 6 somehow grants Certas an advantage with its submissions on preliminary issues 4, 5 and 6. The due dates for submissions were staggered, and the parties made submissions on different preliminary issues at different times. Therefore, I am denying E.L.’s request.

12In the event that I am incorrect and Certas’ service of these submissions somehow did prejudice E.L., the appropriate remedy would be for an extension of time for E.L. to file her materials, not the exclusion of Certas’ submissions. E.L. made no request for additional time to serve and file her materials and made no submissions that the service of Certas’ submissions in some way prevented her from fully participating in this preliminary hearing.

ANALYSIS

Is E.L. entitled to the amount of benefits under the Michigan Code or under the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)? Is E.L. is entitled to re-elect which benefit amounts apply?

13I find that the amount of benefits that apply in this matter are those set out in the Schedule, not those under the Michigan Code. Moreover, I also find that, since E.L. was never eligible to elect which benefits apply, she is also not eligible to “re-elect” which benefit apply under s. 59 of the Schedule.

14Section 243(2) of the Insurance Act² states that statutory accident benefits provided under s. 268 of the Act apply to the use or operation of any automobile in the USA.

15At the relevant time, s. 2(3) of the Schedule stated that the benefits set out in the Schedule shall be provided in respect of accidents that occur in the USA.

16Section 59 of the Schedule as it read at the relevant time allowed an insured to elect to receive benefits according to the Schedule or to benefits in the same amounts, and subject to the same conditions, as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction if, as a result of an accident in another province or territory of Canada or a jurisdiction in the USA, a person insured in that jurisdiction dies or sustains an impairment or incurs an expense described in ss. 15, 16 or 19, and no benefits are received under the law of the jurisdiction in which the accident occurred.

17In turn, s. 59(4) of the Schedule set out the criteria that must be satisfied in order for an individual to be insured in the jurisdiction in which the accident occurred at the time of the accident and, therefore, eligible to make an election under s. 59. These requirements include the person having met the criteria prescribed for recovery under the law of the jurisdiction in which the accident occurred.

18E.L. argues that, even though she elected to receive benefits available to her under Schedule in the same amounts and subject to the same conditions as if she were a resident of Michigan, she was not entitled to make the election because she did not meet the criteria prescribed for recovery under the Michigan Code. Specifically, she points to the fact that Certas has not signed a certificate in compliance with s. 500.3163 of the Michigan Code and, therefore, at the time of the accident, E.L. was not a person insured in that jurisdiction within the meaning of s. 59(4) of the Schedule. As a result, E.L. argues that she is only entitled to benefit amounts under the Schedule.

19E.L. cites s. 500.3113(c) of the Michigan Code, which states:

500.3113 Person not entitled to personal protection benefits.

Sec. 3113. A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:

(c) The person was not a resident of this state, was an occupant of a motor vehicle or motorcycle not registered in this state, and the motor vehicle or motorcycle was not insured by an insurer that has filed a certification in compliance with section 3163.

20Sections 500.3163(1) and (2) of the Michigan Code allow for an out-of-state insurer, who is authorized to transact automobile liability insurance and personal property protection insurance in Michigan, to file and maintain a written certification. This certification allows an out-of-state resident, who is insured under his or her automobile policy and sustains any accidental bodily injury or property damage from a motor vehicle accident that occurs in Michigan, to be subject to the personal injury and property protection insurance system under the Michigan Code.

21It is undisputed between the parties that, at the time of the accident, E.L. held an Ontario automobile insurance policy with Certas. E.L. submits that, at the time of the accident, Certas had not filed a certificate in compliance with s. 500.3163 of the Michigan Code.

22Certas submits that E.L. elected to receive benefits under the Schedule in the same amounts and subject to the same conditions as if she were a resident of Michigan. Certas submitted an “Ontario Accident Benefits Election of Benefits – Accident Outside Ontario” form dated July 3, 2013 (the “election form”) in which E.L. selected the option to “elect to receive benefits available to me in the same amount and subject to the same conditions as if I were a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.”³

23Certas’ submissions failed to address E.L.’s argument that the amount of benefits set out in the Schedule apply because she was never entitled to elect between the two amounts of benefits in the first place. Most importantly, Certas never provided a certificate in compliance with s. 500.3163 of the Michigan Code and never submitted that one was in existence at the time of the accident.

24I find that E.L. is not an “insured in the jurisdiction in which the accident occurred” and, therefore, did not meet all of the criteria outlined in s. 59(4) of the Schedule because Certas did not sign and file a certificate in compliance with s. 500.3163 of the Michigan Code. As a result, the amount of benefits that apply in this matter are those set out in the Schedule, and not those under the Michigan Code.

25Consequently, I also find that, because she was never eligible to elect which benefits amounts apply, she is also not eligible to “re-elect” benefit amounts under s. 59 of the current Schedule.⁴

Do the procedures for claiming and adjusting E.L.’s benefit claims in the Michigan Code or in the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html) apply?

26As I have found that E.L. was never eligible to elect, and is not eligible to “re-elect,” which benefits amounts apply, this preliminary issue is moot: the procedures for claiming and adjusting E.L.’s benefit claims always were, and continue to remain, under the Schedule.

Can E.L. be found to be catastrophically impaired without submitting an application for catastrophic determination to Certas and, if so, has she has been “deemed” catastrophically impaired by Certas?

27Section 45(1) of the Schedule is clear that an insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is catastrophic. This requires an OCF-19 to be submitted to the insurer. There is no process in the Schedule for “deeming” an insured person catastrophically impaired. Therefore, the second portion of this preliminary issue, whether E.L. has been “deemed” catastrophically impaired by Certas, cannot be accepted in light of the Schedule’s provision otherwise.

28E.L. submitted that a catastrophic determination can be made without an OCF-19 being submitted to Certas because:

(i) Certas, in applying the Michigan Code to adjuster her benefit claims, took the position that OCF forms were not required. Therefore, Certas is prohibited from denying a catastrophic determination because an OCF-19 has not been submitted;

(ii) section 45(1) of the Schedule uses the permissive language of “may” rather than “shall” and, therefore, an OCF-19 is optional and is not required to be submitted to Certas prior to a catastrophic determination being made;

(iii) a catastrophic determination is not a benefit but rather a determination and, therefore, it would not be adjusted in accordance with s. 45 of the Schedule; and

(iv) an insured person can also be designated as catastrophically impaired if the insurer knew, or ought to have known, that the insured was catastrophically impaired.

29Certas does not agree with E.L.’s position and, rather, argues that the only procedure for a catastrophic determination is set out in s. 45 of the Schedule. Certas’ position is that nowhere in the Schedule is there a mechanism for “deeming” an insured person catastrophically impaired.

30Certas submits that paragraph 8 of s. 66 of the Schedule requires an application under s. 45(1) to be in a form approved by the Superintendent. Certas submits that the only approved form for this purpose is an OCF-19. Both parties agree that E.L. never submitted an OCF-19 to Certas.

31I agree with Certas that s. 45 of the Schedule is the only avenue by which an insured person may seek a determination that he or she sustained a catastrophic impairment under the Schedule. Therefore, an OCF-19 must be submitted to an insurer as part of the process set out in s. 45(1) of the Schedule. I do not agree with E.L. that the use of “may” in this section is interpreted such that she is not required to submit an OCF-19. Rather, I agree with Certas that “may” means that not every insured person is required to apply for a catastrophic determination. Further, while I appreciate E.L.’s argument that a determination of catastrophic impairment is not a benefit and that an adjudicator makes the ultimate determination on this issue, the procedure for a catastrophic determination is still governed by s. 45 of the Schedule. I also agree with Certas that the case law relied upon by E.L.⁵ provides no support for her position because in both decisions, an OCF-19 was submitted.

32I also agree with Certas that the Schedule does not set out a procedure by which an insured person may be “deemed” catastrophically impaired. As well, I place no weight on the following propositions advanced by E.L., as I agree with Certas that E.L. has provided no authority to support them:

(i) an insured person can also be designated catastrophically impaired if the insurer knew, or ought to have known, that the insured was catastrophically impaired; and

(ii) E.L. is not required to follow the procedure in s. 45 of the Schedule because it is readily apparent from various assessments and reports that she is catastrophically impaired.

33I also reject E.L.’s argument that, because Certas adjusted her benefit claims under the Michigan Code and did not require OCF forms as part of the adjustment, this exempts her from submitting an OCF-19 prior to a determination of catastrophic impairment being made. This argument cannot be accepted given my finding that the Schedule applies in this matter and in light of the Schedule’s provision otherwise.

34For all of the above reasons, I find that s. 45(1) of the Schedule is the only avenue by which an insured person may be determined to be catastrophically impaired. As part of that process, an insured person is required to submit an OCF-19 to the insurer. There is no process or authority that allows an insured person to be “deemed” catastrophically impaired. In light of these findings, the second portion of this preliminary issue of whether or not E.L. has been “deemed” catastrophically impaired by Certas cannot be accepted in light of the Schedule’s provision otherwise.⁶

Is E.L. precluded from proceeding with her application to the Tribunal to determine her entitlement to attendant care benefits, income replacement benefits and medical benefits due to her failure to attend IEs requested by Certas?

35Certas made no written submissions on this preliminary issue and submitted no evidence to support its position. E.L.’s responding submissions also state that she did not receive any correspondence from Certas on this issue.

36As there is no evidence and no submissions before me from Certas on this preliminary issue, I am not granting Certas’ request to preclude E.L. from proceeding with her application for attendant care benefits, income replacement benefits and other medical benefits due to E.L.’s failure to attend IEs.

Is E.L. barred from pursuing her claim to the Tribunal for certain benefits as she failed to apply to the Tribunal within the two year limitation period?

37Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial.

Benefits in Dispute: Chiropractic Services

38Certas submits that the $660.00 sought by E.L. for chiropractic services via an OCF-18 dated March 6, 2014 was denied by correspondence to E.L. dated March 20 and 21, 2014 and sent via regular mail. Therefore, pursuant to s. 64(18) of the Schedule, the denials were deemed received by E.L. on March 27 and 28, 2014, respectively.

39Certas submits that both letters indicated that Certas would not issue payment for this benefit and the reasons for same. Certas submits that the limitation period for this treatment plan began to run on March 28, 2014. Certas’ position is that this application was filed on January 10, 2018 and, therefore, E.L. is statute barred from proceeding with her claim for this benefit, as her application was filed beyond the two year limitation period.⁷

40E.L.’s position is that Certas failed to respond within 10 business days after it received the March 6, 2014 OCF-18, which it was required to do pursuant to s. 38(8) of the Schedule and, therefore, the limitation period has not yet started to run.

41I agree with E.L. that this treatment plan has “Date Received” on the bottom of the document of March 6, 2014. Certas has provided no evidence to contradict this received date. Accordingly, I find that the OCF-18 was received by Certas on March 6, 2014.

42I also agree that Certas failed to give E.L. a notice in accordance with s. 38(8) of the Schedule within 10 business days after it received the OCF-18, as its correspondence dated March 20 and 21, 2014 was not deemed served on E.L. until March 27 and 28, 2014, respectively. Certas failed to provide a reasonable explanation for its delayed response.

43I do not, however, agree with E.L. that because Certas breached s. 38(8) of the Schedule that the limitation period has not yet started to run. When an insurer fails to comply with s. 38(8) of the Schedule, s. 38(11) sets out the consequences to the insurer and requires it to pay for any incurred goods, services, assessments and examinations described in the OCF-18 starting on the 11th business day after the day the insurer received the application until such time that it gives proper notice.

44The March 20 and 21, 2014 letters from Certas state that the OCF-18 is not payable because E.L. failed to comply with the IE process and that E.L. failed to attend the IEs. I find that the March 21, 2014 correspondence from Certas is compliant with the requirements for notice of a denial of benefits under the Schedule as it provided the other reasons for its denial of benefits, it was not required to provide medical reasons for its denial as no medical reasons for the denial exist. Therefore, I find:

(i) Certas is liable for payment for any incurred goods, services, assessments and examinations described in the March 6, 2014 OCF-18 starting from March 21, 2014, which is the 11th business day after Certas received the OCF-18, up to and including March 28, 2014, that being the date that the March 21, 2014 correspondence was deemed received by E.L.;

(ii) The limitation period for E.L. to contest this denial began on March 29, 2014; and

(iii) I agree with Certas that E.L.’s application for chiropractic services in the amount of $660.00 set out in the March 6, 2014 OCF-18 was filed with the Tribunal outside of the two year limitation period.

Benefits in Dispute: Denied December 1, 2015

45Certas submits that the following benefits were submitted via an OCF-6 dated November 26, 2015, and were all denied on December 1, 2015 by way of an Explanation of Benefits (“EOB”), which was delivered by mail to E.L. and deemed received on the fifth business day thereafter on December 8, 2015:

(i) Optometric services recommended by Dr. Daniel Cunningham, $390.00;

(ii) An audiometric assessment recommended by Dr. Paige Pierozynski, $250.00;

(iii) Physiotherapy services recommended by Ann Marie Keough, $1,005.85; and

(iv) Transportation to and from treatment, provided by E.L., $595.98.

46Certas submits that this December 1, 2015 EOB was clear and unequivocal and provided a reason for the denial. Certas also submits that the limitation period began to run on December 8, 2015, and, since E.L.’s application was filed on January 10, 2018, E.L. is statute barred from proceeding with her claim for these benefits, as her application was filed beyond the expiry of the two year limitation period.

47E.L.’s position on these benefits in dispute is that Certas’ December 1, 2015 EOB was deficient because it failed to set out the medical reasons for its denial as required by s. 38(8) of the Schedule. As such, E.L. argues that the notice was deficient and, therefore, the limitation period had not yet began to run.

48The benefits denied by way of the December 1, 2015 EOB were not submitted on a treatment and assessment plan or an OCF-18; rather, they were submitted to Certas via an expense claim form, or an OCF-6. I find that requirements under s. 38(8) of the Schedule of providing “medical and other reasons” for the denial of these benefits is not applicable because s. 38 only applies to treatment and assessment plans. It is clear that the OCF-6 that E.L. submitted does not meet the requirements of a treatment and assessment plan under s. 38 of the Schedule and it is also not in the approved form under paragraph 4 of s. 66 of the Schedule.

49Therefore, I agree with Certas that E.L.’s application for these were filed with the Tribunal outside of the two year limitation period.

Benefits in Dispute: Denial date of December 12, 2015

50Certas submits that the following benefits were submitted via an OCF-6 dated July 2, 2015, and were all denied on December 12, 2015 by way of an EOB which was delivered by mail to E.L. and deemed received on the fifth business day, December 18, 2015:

(i) Transportation to and from treatment, provided by R.L., $624.47;

(ii) Transportation to and from treatment, provided by E.L., $677.27;

(iii) Optometric services recommended by Dr. Daniel Cunningham, $650.00;

(iv) Optometric services recommended by Dr. Daniel Cunningham, $85.00; and

(v) Dental services recommended by Dr. Jennifer Kerr, $860.00.

51Certas submits that this EOB was clear and unequivocal and provided reasons for the denials. Certas submits that the limitation period started to run on December 18, 2015 and, since E.L.’s application was filed on January 10, 2018, E.L. is statute barred from proceeding with her claim for these benefits.

52E.L.’s position is that Certas’ notice of its denial was deficient because it failed to set out the medical reasons for the denial, contrary to s. 38(8) of the Schedule. As such, the notice was deficient and the limitation period had not yet began to run.

53As discussed above, I find that the requirements set out in s. 38(8) of the Schedule do not apply to an OCF-6 and, therefore, I agree with Certas that E.L.’s application for these benefits were filed with the Tribunal outside of the two year limitation period.

Relief from the Limitation Period: Legislation Changes

54Prior to April 1, 2016, under the Financial Services Commission of Ontario (“FSCO”) regime, an applicant was required to mediate and either commence an arbitration or action within two years of the refusals. Under this regime, an applicant had an extra 90 days after the Report of Mediator in which to file for a proceeding that was, essentially, equivalent to an application at the Tribunal. The 90-day grace period was removed by the changes to the legislation on April 1, 2016, when the Tribunal assumed jurisdiction over automobile accident benefits claims. Certas submits that the limitation period of two years, however, did not change after April 1, 2016.

55In her submissions, E.L. makes reference to the change in the legislation, noting that she filed for mediation with FSCO initially on August 25, 2014 (for a single benefit which is not the basis of this preliminary hearing issue), and again on October 23, 2015 for an additional 15 benefits. Following a mediation that concluded on March 23, 2016, 30 claims for benefits were included in the Report of Mediator dated March 29, 2016 that were the subject of this failed mediation.⁸

56E.L. commenced a superior court of justice action on February 3, 2015, which dealt with the one benefit sought from her initial Application for Mediation dated August 25, 2014. Following the second failed mediation at FSCO, E.L., through her counsel at that time, moved the 30 issues into arbitration by commencing an arbitration at FSCO. However, on September 9, 2016, E.L. terminated counsel and withdrew her application for arbitration on these 30 issues.

57E.L. then brought a motion to amend her statement of claim to include the items from her second mediation at FSCO, several other disputed benefits that were never the subject of any arbitration, and additional damages. This motion was heard on January 31, 2017 and the decision was released on February 2, 2017. E.L., however, did not file her motion materials as evidence for the preliminary hearing, so it is unclear what benefits, in addition to those from her October 23, 2015 application for mediation, she was requesting to be added to her statement of claim.

58E.L.’s motion to amend her statement of claim was dismissed. The court found that after E.L.’s withdrawal of her request to arbitrate with FSCO, E.L.’s only option was to apply to the Tribunal if she wished to continue her dispute. The court held that to allow E.L. to amend her statement of claim to include failed issues from the March 2016 mediation would effectively circumvent the effect of the law as it existed after April 1, 2016.

59E.L. submits that the limitation period stopped upon her submission of her first and second mediation to FSCO. I do not agree with E.L.’s submission and she has provided no support for this position.

60E.L. also argues that the two year limitation period would not start to run until after the court made its ruling on February 2, 2017. I also disagree with E.L.’s submission, as she provides no support for this position either. Furthermore, the court reviewed the change in the legislation in its decision and confirmed that s. 280(1) and (2) of the Insurance Act directed all disputes initiated after April 1, 2016 to proceed to the Tribunal.

61E.L. submits that she was caught in a time of change in the legislation and that she should not be penalized for this. The decision of 16-001976 v Co-operators General Insurance Company⁹ that was submitted by Certas directly addressed the limitation period set out in s. 56 of the Schedule for disputes that arose during this time. In 16-001976, Adjudicator Sewratten made no determination of whether the limitation period in s. 56 of the Schedule could be relaxed due to the switch from FSCO to the Tribunal, and held, “to the extent that this power exists, however, this is not the case in which it applies.”¹⁰

62Section 7 of Licence Appeal Tribunal Act, 1999 (the “LAT Act”) gives the Tribunal power to extend the time, despite any limitation of time fixed by or under any Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief. Neither party, however, referred to this provision in their argument and declined to make further submissions regarding same following my request. Nevertheless, I am obliged to consider s. 7 of the LAT Act despite neither party citing this section.¹¹

63In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

(i) the existence of a bona fide intention to appeal within the appeal period;

(ii) the length of the delay;

(iii) prejudice to the other party; and,

(iv) the merits of the appeal.¹²

64I find that this is not a case in which I am prepared to exercise my discretion to extend the limitation period for the the benefit in dispute of $660.00 for chiropractic services set out in the March 6, 2014 OCF-18. As the limitation period for this benefit began to run on March 28, 2014, I cannot conclude that E.L. had a bona fide intention to appeal within the appeal period as, similar to 16-001976,¹³ there is no satisfactory explanation for her delay in applying to the Tribunal on January 10, 2018 after she was explicitly directed to do so by the court on February 2, 2017. Furthermore, the delay and resulting prejudice to Certas is significant, as E.L. did not apply to the Tribunal until 10 months after the expiry of the limitation period. While Certas remains liable for payment for any incurred goods, services, assessments and examinations described in the March 6, 2014 OCF-18 for the period starting on March 21, 2014, and ending on March 28, 2014, I find that E.L. is statute barred from proceeding with her claim for any incurred amounts of the $660.00 for chiropractic service outside of this period.

65I do find, however, that this is a case in which I am prepared to exercise my discretion under s. 7 of the LAT Act to extend the limitation period for the benefits in dispute where the limitation began to run on December 8, 2015 and December 18, 2015. The two year limitation period for these benefits in dispute expired on December 7, 2017 and December 17, 2017 respectively. Therefore, there was a minimal delay in E.L. applying to the Tribunal for a determination of these benefits on January 10, 2018 of approximately one month and Certas has made no submissions on how it is prejudiced by this minimal delay.

66As such, I find that although E.L. applied to the Tribunal for the following benefits outside of the two year limitation period, I am using my discretion under s. 7 of the LAT Act to allow E.L.’s application for the following benefits to proceed to a hearing on their merits: 5(b)(i), 5(b)(ii), 5(b)(iii), 5(c), 5(d), 5(e), 5(f)(i), 5(f)(ii) and 5(f)(iii) as set out in paragraph [5] above.

Is E.L. barred from pursuing her claim to the Tribunal for certain benefits on the basis that Certas did not receive an application for the benefits claimed?

Benefit in dispute: Dental Services

67I find that E.L. is not barred from pursuing her claim to the Tribunal for preliminary issue 6(k) as set out in paragraph [5] above as Certas does not deny receiving an application for dental services by Dr. Jennifer Valente in the amount of $400.00 dated November 27, 2013, but rather takes the position that it is not require to pay for this benefit.

68Whether or not a benefit is payable is beyond the scope of this preliminary hearing and I decline to make any findings on the substantive issues in dispute.

Benefit in Dispute: Hearing Aids and Dispensing Program

69E.L. has sought funding for hearing aids and a dispensing program in two documents, each authored by Christine Sonneveld, hearing technician, and both in the same amount of $6,340.00. One benefit was on an OCF-18 dated December 1, 2015 and the second was on an OCF-6 dated January 1, 2016.

70It is unclear to me from Certas’s submissions if it received this OCF-18 and OCF-6 or not. However, Certas is clear in its position that the OCF-18 was not in compliance with s. 38(3)(b) of the Schedule as it read at the relevant time because Ms. Sonneveld, who completed these forms, is neither a “regulated health professional” nor a “health practitioner.” Certas also argues that the OCF-6, which appears to be a duplicate of the OCF-18, was not submitted via a treatment plan but rather an expenses claim form. As such, Certas submits that E.L. has not applied for payment for the hearing aids and dispensing program via a treatment plan in compliance with s. 38 of the Schedule.

71E.L.’s submissions on when she allegedly applied to Certas for these two benefits is confusing, as she lists two to three different alleged submission dates. She also takes the position that Ms. Sonneveld is a Hearing Instrument Specialist and is a regulated health professional according to s. 3(1) of the Schedule. Therefore, E.L. submits that the December 1, 2015 OCF-18 was a valid treatment plan.

72Section 38(1) of the Schedule applies to any claim for medical or rehabilitation benefits and s. 38(3) requires an application for benefits to be submitted via a treatment plan that is completed and signed by a “regulated health professional.” Section 3(1) of the Schedule defines “regulated health professional” as, “a member of a regulated health profession,” which includes a profession governed by a College as defined in the Regulated Health Professions Act, 1991.¹⁴

73At the relevant time, the RHPA defined “College” as the College of a health profession or group of health professionals established or continued under a health profession act. I find that Ms. Sonneveld, as either a hearing technician or a hearing instrument specialist, was not a member of a health profession, as there is no College or group of health professionals established for her designation under a health profession act. I accept that she is a member of the Association of Hearing Instrument Practitioners, but this is not a college as defined by the RHPA as it is rather a non-profit organization.¹⁵

74Therefore, I agree with Certas that the December 1, 2015 OCF-18 was not a valid application for benefits because it was not prepared by a regulated health professional.

75I also find that the January 1, 2016 OCF-6 is not a valid application for benefits under s. 38 of the Schedule because it is not an approved form by the superintendent, as required by paragraph 4 of s. 66 of the Schedule, and it also fails to contain a statement by a health practitioner approving the treatment plan that he or she is of the opinion that the expenses contemplated are reasonable and necessary for E.L.’s treatment or rehabilitation.¹⁶

76I am also not persuaded by E.L.’s argument that OCF forms were not required to claim for her benefits. Although I agree that Certas informed E.L. in correspondence dated November 27, 2013, that, “the use of Treatment and Assessment Plan (OCF-18) form is not required to claim for personal protection insurance benefits,” I have determined that the Schedule applies, not the Michigan Code and, therefore, the use of OCF forms are required in this matter.

77I find, therefore, that even if Certas received the December 1, 2015 OCF-18 and the January 1, 2016 OCF-6, both for hearing aids and a dispensing program, these two documents failed to comply with the requirements of s. 38 of the Schedule and, therefore, no application for these benefits has been submitted by E.L. to Certas.¹⁷

Benefit in Dispute: Eyeglasses

78Certas submits that the benefit sought for eyeglasses in the amount of $1,285.00, recommended by Dr. M. Moussa and dated July 18, 2014, arises from an estimate prepared by Dr. M. Moussa dated March 28, 2014 that was included in Dr. Moussa’s clinical notes and records (“CNRs”).

79Certas submits that it never received an an OCF-18 for this amount and argues that simply forwarding medical records that contain an estimate falls short of submitting an application in accordance with the Schedule.

80E.L submits that she and Dr. Moussa did not know how to submit this benefit to Certas, and she relies upon the estimate submitted on July 18, 2014 as her application for her eyeglasses.

81I find that Dr. Moussa’s estimate does not comply with the requirements of section s. 38 of the Schedule, as it is not on an approved form as discussed above, and it also fails to include a statement by Dr. Moussa’s that he is of the opinion that the expenses contemplated are reasonable and necessary for E.L.’s treatment or rehabilitation.¹⁸ Therefore, no application for eyeglasses in the amount of $1,285.00 has been submitted to Certas in accordance with the Schedule.

Remaining Benefits in Dispute under this Preliminary Issue

82Certas submits that it cannot prove a negative and, rather, submits that the evidentiary onus is on E.L. to prove that she applied to Certas for the benefits included in this preliminary issue.

83Certas relies upon s. 55(1) of the Schedule as it read at the time of E.L.’s application and submits that E.L. is prohibited from commencing her application to the Tribunal if she did not submit an application for a benefit to Certas. Except for the benefits discussed in paragraphs [67] to [81] above, Certas’ position is that it never received an application for the benefits sought by E.L. as set out in preliminary issue 6.

84As stated above, I am not persuaded by E.L.’s arguments that no applications were submitted because she was advised that no OCF forms were not required. I am also not persuaded by E.L.’s submissions that when an email goes to junk mail, it is deemed delivered, and that if an email does not come back to her as the sender, that it is deemed delivered. It is clear that some of E.L.’s emails were not sent to the correct email address and there is no evidence to support E.L.’s position that Certas changed its email suffix or purposefully blocked her emails. I also agree with Certas that s. 64(2)(e) of the Schedule requires consent of the intended recipient for delivery of a document to be by electronic means. E.L. has not advanced any evidence to support a finding that Certas has consented to receiving documents from E.L. via email.

85Aside from various other statements that E.L. submitted applications for benefits, which, at times, were inconsistent, she has not provided any evidence that she submitted applications for certain benefits to Certas and is, therefore, precluded from applying to the Tribunal for the following benefits as set out in paragraph [5] above: 6(a), 6(b), 6(c), 6(e), 6(f), 6(g), 6(i)(i), 6(i)(ii), 6(j), 6(l)(i), 6(l)(ii), 6(o)(i) and 6(o)(ii).

86E.L. is able to continue her application for issue 6(k) in paragraph [5] above.

CONCLUSION

87Based on my reasons set out above, I find that:

(i) the amount of benefits that apply in this matter are those set out in the Schedule;

(ii) E.L. is not eligible to “re-elect” which benefit amounts apply pursuant to s. 59 of the Schedule;

(iii) the procedures in the Schedule for claiming and adjusting E.L.’s benefit claims apply to this matter;

(iv) E.L. cannot be found to be catastrophically impaired without submitting an OCF-19 to Certas;

(v) There is no procedure in the Schedule to “deem” an injured person catastrophically impaired. Therefore, Certas has not “deemed” E.L. catastrophically impaired;

(vi) I am not granting Certas’ request to preclude E.L. from proceeding with her application to the Tribunal to determine her entitlement to attendant care benefits, income replacement benefits and medical benefits as a result of any non-attendance at an IE requested by Certas;

(vii) E.L. is able to proceed with her application to the Tribunal for the following benefits because although she applied to the Tribunal outside of the two year limitation period, I have applied my discretion to extend the limitation period: 5(b)(i), 5(b)(ii), 5(b)(iii), 5(c), 5(d), 5(e), 5(f)(i), 5(f)(ii) and 5(f)(iii) as set out in paragraph [5] above;

(viii) Certas is liable for payment for any incurred goods, services, assessments and examinations described in the March 6, 2014 OCF-18 for chiropractic services for the period starting on March 21, 2014, and ending on March 28, 2014. E.L. is statute barred from proceeding with her claim for any incurred amounts under this treatment plan outside of this period because she failed to apply to the Tribunal within the two year limitation period after Certas issued its denial that was compliant with s. 38(8) of the Schedule. I am not exercising my discretion to extend the limitation period for this benefit in dispute;

(ix) E.L. has not submitted a valid application to Certas and, therefore, is precluded from applying to the Tribunal for the following benefits as set out in paragraph [5] above: 6(a), 6(b), 6(c), 6(d), 6(e), 6(f), 6(g)(i), 6(g)(ii), 6(h)(i), 6(h)(ii), 6(i), 6(j)(i), 6(j)(ii), 6(l), 6(m)(i) and 6(m)(ii); and

(x) E.L. is not precluded from continuing her application to the Tribunal for issue 6(k) in paragraph [5] above.

OTHER PROCEDURAL ISSUES

88As part of her submissions, E.L. discusses her entitlement to a “special award.” The issue of whether or not E.L. is entitled to an award under Ontario Regulation 664 is not properly before me at this time as a preliminary issue. As such, I decline to address this issue as it will be determined by the hearing adjudicator.

89As the next steps following the decision on the preliminary hearing was not addressed in Adjudicator Neilson’s July 17, 2018 Order, I order that within 30 days of the release of this preliminary hearing decision, the Tribunal will schedule, and the parties shall attend, a resumption of the case conference to schedule a hearing in this matter to determine the remaining substantive issues in dispute.

Released: June 19, 2019

________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1E.L. declined my proposal to resume the case conference via teleconference for case management purposes, which would have included an opportunity to address E.L.’s request to exclude certain submissions by Certas in advance of the written preliminary hearing.
2. 2R.S.O. 1990, c. I.8.
3. 3Insurer’s Responding Submissions Regarding Preliminary Issue I S. 59(2) Election and Possible Re-Election, tab 1.
4. 4Certas has requested as part of its submissions that if the Tribunal allows E.L. to elect or re-elect benefit amounts under the Schedule, that a condition is that E.L. first return all housekeeping and home maintenance expenses and all transportation expenses relating to the first 50 kms of each round trip. Any repayment sought by Certas was not listed as a preliminary issue in dispute between the parties in Adjudicator Neilson’s July 17, 2018 Order. The proper course to seek any repayment is for Certas to file a new and separate application to allow for proper submissions to be made on this issue as the onus shifts to Certas to prove its entitlement to the repayment.
5. 5M.M. v. Optimum Insurance Co., [2018] O.F.S.C.D. No. 78 and Czombos v. Wawanesa Mutual Insurance Co., [2017] O.F.S.C.D. No. 332.
6. 6As part of their submissions on preliminary issue 2 raised by E.L., both parties made submissions concerning the total amount of benefits that E.L. is entitled to under her insurance policy with Certas. This issue in dispute was not listed as a preliminary issue in Adjudicator Neilson’s July 17, 2018 Order. As this not a true preliminary issue, the more appropriate avenue for making any determination on this issue is at the hearing on the substantial issues in dispute and I make no findings on this issue in dispute between the parties.
7. 7As an aside, E.L. would have been required at this time to exhaust the Financial Services Commission of Ontario process for this treatment plan and also for the benefits denied on December 1 and 12, 2015. In any event, this does not change the outcome of my decision.
8. 8Applicant’s Responding Submissions on Preliminary Issues ii, iv, v, tab 37.
9. 92017 CanLII 19198 (ON LAT) (“16-001976”), upheld on reconsideration, 16-001976 v. Co-operators General Insurance Company, 2017 CanLII 39602 (ON LAT).
10. 10Ibid. at para. 19.
11. 11See A.F. v. North Blenheim Mutual Insurance Company, N.L. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (“A.F.”).
12. 12Ibid. at para. 28.
13. 13Ibid. at para. 17.
14. 14S.O. 1991, c. 18 (“RHPA”).
15. 15Applicant’s Submissions on Preliminary Issues iii, iv, v, tab 86(b).
16. 16Section 38(3)(c).
17. 17While neither party raised the issue, s. 32(6) of the Schedule requires an insurer to notify an applicant when it receives an incomplete application, including an application for benefits, within 10 business days after receipt of the applicant and it is to advise the applicant of the missing information that it requires. Even if this requirement was addressed by the parties, there are no consequences to an insurer for failing to comply with this requirement in s. 32 of the Schedule as there is in s. 38. Therefore, any consideration of an insurer’s obligations under s. 32 does not change my finding on the issue.
18. 18Section 38(3)(c).