Citation: Biryukova vs. Security National Insurance Company, 2021 ONLAT 19-012165/AABS

Released Date: 01/18/2021

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:

Elena Biryukova

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Elena Biryukova, Applicant

Denis Chubar, Paralegal

For the Respondent:

Taylor C. Cawley, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on October 22, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal-Automobile Accident Benefits Services (AABS) (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are:

Preliminary Issues

1. Is the applicant’s claim for psychological treatment in the amount of $1,995.33 recommended by Essential Physio Rehabilitation in a treatment plan (OCF-18) submitted on May 24, 2017, and denied on June 22, 2017, barred by the limitation period prescribed by the Schedule?

2. Is the applicant’s claim for an orthopaedic assessment in the amount of $1,998.00 recommended by Essential Physio Rehabilitation in a treatment plan (OCF-18) submitted on June 12, 2017, and denied on June 21, 2017, barred by the limitation period prescribed by the Schedule?

3. Is the applicant’s claim for a neurological assessment in the amount of $1,980.00 recommended by Essential Physio Rehabilitation in a treatment plan (OCF-18) submitted on July 31, 2017, and denied on August 10, 2017, barred by the limitation period prescribed by the Schedule?

4. Is the applicant’s claim for chiropractic treatment in the amount of $3,950.66 recommended by Essential Physio Rehabilitation in a treatment plan (OCF-18) submitted on July 10, 2017, and denied on July 18, 2017, barred by the limitation period prescribed by the Schedule?

5. Is the applicant’s claim for a chronic pain assessment in the amount of $2,000.00 recommended by Essential Physio Rehabilitation in a treatment plan (OCF-18) submitted on August 21, 2017, and denied on August 23, 2017, barred by the limitation period prescribed by the Schedule?

6. Is the applicant’s claim for chiropractic treatment in the amount of $3,696.50 recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan (OCF-18) submitted on March 14, 2017, and denied on March 21, 2017, barred by the limitation period prescribed by the Schedule?

Substantive Issues

7. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

8. Is the applicant entitled to a medical benefit in the amount of $149.44 for medication listed in an expense claim form (OCF-6) submitted on March 20, 2018 and denied on April 6, 2018?

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

RESULT

4The applicant is statute-barred from proceeding with his application for the benefits set out in the preliminary issues section above.

5The applicant’s injuries fall within the MIG.

6The applicant is not entitled to a medical benefit in the amount of $149.44 for medication listed in an expense claim form (OCF-6) submitted on March 20, 2018 and denied on April 6, 2018.

7There is no interest owing under s. 51.

BACKGROUND

8The applicant was in a motor vehicle accident on October 22, 2016 where her car sustained very little damage. The applicant submitted her claim for benefits four months after the accident on February 22, 2017. The respondent approved $3,500.00 in medical and rehabilitation benefits under the MIG.

9The applicant’s medical records show that she attended her family doctor, Dr. Kamenskaia, on January 18, 2017, March 2, 2017, April 12, 2017 and December 12, 2017. The applicant’s complaints were neck pain, right shoulder pain and driving anxiety.¹ Dr. Kamenskaia recommended neck massaging, stretching and stress reduction and prescribed 10 mg. of the antidepressant Cipralex.

10The applicant attended various section 44 Insurer’s Assessments arranged by the respondent to assess her accident-related impairments. She was assessed by Dr. A. Rubenstein, Psychologist, on April 3, 2017 and in a report dated April 12, 2017, Dr. Rubenstein found no evidence that would warrant any diagnosis according to the DSM-IV criteria.² The applicant was then assessed by Dr. B. Kucher, Neurologist, on April 21, 2017, and in a report dated May 11, 2018, Dr. Kucher determined that the applicant suffered minor injuries as described in the MIG.³ Similarly, Dr. I. Harrington, Orthopaedic Surgeon, reported on April 28, 2017 that the applicant’s injuries fell within MIG.⁴ This MIG finding was also confirmed by Dr. Rusen, Orthopaedic Surgeon, in a report dated May 30, 2018.⁵

11The applicant’s Application was submitted to the Tribunal over two years after the denials were received from the respondent.

ANALYSIS

Preliminary Issues

12Section 280(2) of the Insurance Act, R.S.O. 1990 c.1.18 (the “Act”) allows an insured person to apply to the Tribunal to resolve a dispute with respect to any entitlement to accident benefits. Section 56 of the Schedule states that any application under section 280(2) of the Act shall be commenced within two years after the insurer’s refusal to pay the amount claimed.⁶ It is the insurer’s denial of the specific benefit that triggers the two-year limitation period.⁷

13It is well-settled that any denial by the insurer must be in writing, be straightforward and in clear language that an unsophisticated person would understand and include a description of the most important parts of the dispute process and include the relevant time limits that govern the entire process.⁸

14Further, section 7 of the Licence Appeal Tribunal Act, 1999. s.o. c. 12 Sch. G. permits the Tribunal to extend the time for commencing an application before or after the expiry of a limitation period where the Tribunal is satisfied that there are reasonable grounds for applying for an extension of time. The appropriate test to be applied when considering whether to extend a limitation period includes four factors: the existence of a bona fide intention to appeal within the appeal period; the length of the delay; the prejudice to either party; and the merits of the appeal.⁹

15I find the evidence is clear that the applicant failed to submit her application for the benefits within the two-year limitation period as required by section 56 of the Schedule because the two-year limitation period to appeal the denials elapsed on June 2, June 21, July 18, August 10, August 23, 2017.

16There is no evidence before me that the respondent’s denials were not straightforward and in clear language that an unsophisticated person would understand; did not include a description of the most important parts of the process and did not include the relevant time limits that govern the entire process, in accordance with the requirements of Smith v. Co-Operators.

17I also find that there is no evidence before me to utilize the Tribunal’s discretion under s. 7 of the Licence Appeal Tribunal Act to extend the limitation period. The applicant has not demonstrated that there was the existence of a bona fide intention to appeal within the appeal period. There is no evidence before me to explain why the applicant left it so late to appeal. The delay by the applicant is long because there might be problems in obtaining the evidence needed to complete the respondent’s case. This would now prejudice the respondent. The applicant has also not set out any grounds to show the merits of any appeal.

18I therefore find, based on the above analysis, that the applicant is statute-barred under section 56 of the Schedule from proceeding with the claims, identified in the preliminary issues section.

Substantive Claims

MIG

19Section 3(1) of the Schedule defines a “minor injury” as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury.¹⁰

20Section 18(1) of the Schedule sets the limit for medical and rehabilitation benefits for an insured person who sustains an impairment that is predominantly minor at $3,500.00.¹¹ Pursuant to s. 18(2), the limit does not apply if the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident, and the limit if applied, would prevent the insured person from achieving maximal recovery from the minor injury.

21There is no medical evidence from the applicant to show that the applicant’s injuries were not minor injuries, as defined by the Schedule. I afford great weight to the medical reports of Dr. A. Rubenstein, Dr. B. Kucher, Dr. I. Harrington and Dr. Rusen, which all clearly show that the applicant’s injuries fall within the MIG.

22There is no evidence before me to show that the applicant had any pre-existing medical conditions that were documented by a health practitioner before the accident, and the limit if applied, would prevent the insured person from achieving maximal recovery from the minor injury. Accordingly, I find the applicant cannot escape the MIG under s. 18(2).

23I accept the medical evidence of the above doctors and find that the applicant’s injuries fall within the MIG.

Is the applicant entitled to a medical benefit in the amount of $149.44 for medication listed in an expense claim form (OCF-6) submitted on March 20, 2018 and denied on April 6, 2018?

24As the applicant already received the maximum payment of $3,500 under the MIG, she is therefore not entitled to a further benefit amount of $149.44 and an analysis of whether the benefit is reasonable and necessary under s. 16 is not required as no benefits are payable.

Interest

25I find that no interest is owing, as there are no benefits outstanding that are owed.

CONCLUSION

26For the reasons given above, the application is dismissed.

Footnotes

1. 1Tab 4-extracts from records of Dr. Kamenskaia
2. 2Tabs 5,8 S.44 Psychology Assessment by Dr. Rubenstein dated April 3, 2017 and April 12
3. 3Tab 6 s. 44 Neurology Assessment by Dr. Kucher dated April 21, 2017
4. 4Tab 7 s.44 Orthopaedic Surgery Assessment by Dr. Harrington dated April 28, 2017
5. 5Tab 10 s. 44 Orthopaedic Surgery Assessment by Dr. Rusen dated May 30, 2018
6. 6Statutory Accident Benefits Schedule: O. Reg. 34/10, as amended, s. 56
7. 716-003034 v. Economical Mutua Insurance Company, 2017 CanLII 59507 (ONLAT); Aff’d 2018 CanLII 61170 (ON LAT); 2018 ONSC 5664 (Div. Ct.).
8. 8Smith v. Co-operators Insurance Co., 2002 SCC 30.
9. 9Manuel v. Registrar, Motor Vehicle Dealers Act 2002, 2012 ONSC 1492.
10. 10Section 3(1), O. Reg. 34/10.
11. 11Section 18(1), O. Reg. 34/10.