Citation: A.G. vs. Allstate Insurance Company of Canada, 2021 ONLAT 19-003687/AABS

Released: January 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:

A.G.

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

Dr. Jordan Palmer, Ph.D., Counsel

For the Respondent:

Mr. Derek Yap, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1The applicant, [A.G.], was involved in an automobile accident on September 9, 2015. Her insurer, Allstate Insurance Company of Canada (“Allstate”) has denied her physiotherapy treatment for her injuries. It has also declined to approve a neurological assessment. Ms. [G] is of the opinion that these treatments and the assessment have been improperly denied under the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10 (the ''Schedule''). She has appealed Allstate’s failure to approve to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Allstate takes the position that Ms. [G]’s application for a neurological assessment was brought well beyond the two-year limitation period set out in s. 56 of the Schedule. It has brought a preliminary issue motion asking me to dismiss this aspect of Ms. [G]’s claim. With respect to the physiotherapy treatments, it submits that the treatments are not reasonable and necessary. It points to the fact that Ms. [G] has had extensive treatment and the records show no improvement in her condition. In Allstate’s view, Ms. [G] would be better served by a self-directed in-home exercise program.

3I find that Ms. [G] has brought her application for a neurological assessment well after the expiry of the two-year limitation period. That fact is not in dispute. Ms. [G] asks me to exercise a discretion which she says I am given by s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, chap 12, Sched. G (the “LAT Act”). While her claim for the assessment has merit, she has failed to explain why she did not launch her claim until 5 months after the expiry of the 2 years or set out any circumstance that led to her filing after the expiry of the limitation period. The delay is lengthy, and the presumed prejudice to Allstate has not been overcome by Ms. [G]’s single paragraph on that issue in her submissions of the test to be applied.

4I find Ms. [G] has also failed to demonstrate that the two physiotherapy treatment plans are reasonable and necessary. Medical records from the extensive physiotherapy treatment she has attended show no change in her condition as a result of her treatment. It would be unreasonable to continue down the same treatment path indefinitely with no benefit from the treatments and no end in sight.

PRELIMINARY ISSUES

5The preliminary issue as defined in the case conference order states:

a. Is the applicant barred from proceeding with her claim for neurological assessment denied by the respondent on November 21, 2016 because it is out of time and is past the 2-year limitation period from the date of denial pursuant to s. 56 (1) of the Schedule?

6The Legislature has set out a two-year limitation period in s.56 of the Schedule that requires proceedings to be commenced “within two years after the insurer’s refusal to pay the amount claimed.” Ms. [G] relies on s. 7 of the LAT Act which allows for an extension of time to file in certain circumstances. Section 7 states, in part:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited;

7Section 7 of the LAT Act, then, asks me to consider if there are reasonable grounds for granting an extension of time. To determine the existence of reasonable grounds, I must consider the circumstances that led to the missed limitation period.

8The test when considering an extension of time following the expiration of the two-year limitation period is to consider the justice of the case. There are four factors that have been applied to assist in determining the justice of the case: an intention to appeal within the appeal period, the length of the delay, prejudice to the other party, and the merits of the case. (See AF v. North Blenheim Mut. Ins. Co., 2017 CanLII 87546 (ON LAT) (“North Blenheim”), MTG v. Aviva Gen. Ins., 2020 CanLII 12740 (ON LAT) (“MTG”)). Ms. [G] makes no submissions on an intention to appeal within the appeal period or on the length of the delay and the explanation for it. In my view these omissions are fatal to her request for an extension of time because they render it impossible for me to understand the circumstances and determine if reasonable grounds exist.

9Ms. [G] filed her application for dispute resolution with the Tribunal on April 3, 2019. In her application she requests payment in the amount of $2,260 for a neurological assessment which she states was denied on July 10, 2017, making her application timely from a limitation period point of view. In its response. Allstate stated that the neurological assessment was denied on November 3, 2016 meaning that her application to the Tribunal was five months beyond the two-year period. It appears that at the case conference there was consensus that the November 3, 2016 date is the correct one as that is the date of denial set out in the substantive issues. There seems to be a typographical error in transcribing the November 3 date to the preliminary issue where it states the denial was November 21, 2016, but nothing in my analysis turns on this discrepancy.

10In paragraph 22 of her submissions, Ms. [G] concedes that the application was filed beyond the 2-year period by stating: “The Applicant bases her request for an extension of the two year presumptive time limit on the issues of prejudice and the merits of the case.” She has not asserted anywhere, other than the initial application, that the date of denial was July 10, 2017 and I have no evidence where that date came from.

11In MTG, as in this decision, I pointed out that the four factors are to be weighed to assist in determining the justice of the case. I adopted the principle that weakness in one area may be offset by strength in another area. I also pointed out that the applicant had the onus. By failing to address all four factors, Ms. [G] has not given me enough information to satisfy her onus. In essence, her submissions come down to the proposition that anyone with a strong case on the merits should be granted an extension of time in the absence of any special circumstances or explanation of how and why the limitation period was missed. Ms. [G]’s submissions also reverse the onus in the four-part test by requiring Allstate to prove that it is not prejudiced. She inserts a one-line justification that since the case is heavily dependent on documentation, there is no prejudice.

12Ms. [G] points to the insurer’s medical examiner’s findings that “[s]ensation was decreased in the glove-and-stocking distribution with pinprick,” indicating a neurological condition to support her claim for a neurological assessment by her own medical examiner. She did have the assessment that is currently in dispute in April 2017 and it found that she had “Mild Left Sensory Median Nerve Damage.” On the basis of these facts, it cannot be said that her application for a neurological assessment is without merit. What is missing from the submissions and evidence before me is the reason why she waited for five months after the expiry of the limitation period before she brought her claim to the Tribunal.

13In my view, taking into account that the Legislature has set a two-year limitation period but has also given the Tribunal a discretion to consider if there are reasonable grounds to extend the limitation period, it was the Legislature’s intention that the discretion in s. 7 of the LAT Act was to be available only in exceptional circumstances where it would be unjust to deny an applicant a remedy. Ms. [G] has fallen far short of establishing anything exceptional about her missed limitation period. In fact, she has not justified it at all. She simply states that she has a good case and would probably win. I decline to exercise any discretion in s. 7 in her favour.

14In reply submissions, Ms. [G] has included several scholarly articles and a recent Tribunal decision, Z.P. vs. Guarantee Company of North America, 2020 ONLAT 2020 CanLII 12697 (ON LAT) (“Z.P.”). I have not considered the scholarly articles. This evidence should have been part of her submissions and it is inappropriate to lead new evidence in reply submissions and deny Allstate the right to respond. The submissions also add nothing to my analysis as I found evidence in Ms. [G]’s initial submissions to satisfy me her claim for reimbursement of a neurological assessment meets the “merits of the case” test.

15I find Z.P. distinguishable on several grounds. The most telling is that the respondent took no position on the motion. It is true that there was no explanation of the delay, but I note that Tribunal held that the delay was not significant. I also note that in MTG, at paragraph 15 I addressed the question of a short delay and particularly the comments of the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492 that, even a short delay may be fatal as limitation periods are to be treated with respect. I point out again that the relief afforded by s. 7 of the LAT Act is discretionary. The adjudicator in Z.P., dealing with different facts, found reasonable grounds to exercise his discretion in favour of the applicant. On the facts before me I have no found reasonable grounds in support of the extension and I decline to exercise my discretion in Ms. [G]’s favour.

16Ms. [G]’s claim for a payment of a neurological assessment in the amount of $2,260 is barred by the operation of s. 56 of the Schedule.

SUBSTANTIVE ISSUES

17The substantive issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to receive a medical benefit in the amount of $2,075.00 for physiotherapy treatment, recommended by Progressive Rehab Clinic in a treatment plan dated April 25, 2017, and denied by the respondent on May 11, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,526.78 for physiotherapy treatment, recommended by Progressive Rehab Clinic in a treatment plan dated March 13, 2018, and denied by the respondent on March 28, 2018?

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

18Given my finding above that Ms. [G] may not proceed with her claim for a neurological assessment, there remains a claim for two physiotherapy treatment plans recommended by Progressive Rehab Clinic together with interest if I find she is entitled to the treatment.

19The dispute between the parties with respect to entitlement to physiotherapy treatment comes down to a difference of opinion between Ms. [G]’s treatment providers and Allstate’s assessors. The former believe that Ms. [G] will benefit from further facility-based physiotherapy. Ms. [G] accepts their opinion and states that she has paid for physiotherapy even after Allstate denied further payment. Allstate’s assessors are of the opinion that Ms. [G] has achieved maximum benefit from facility-based physiotherapy, and she would do better to focus her efforts on a home-based exercise program.

20I do not have the treatment and assessment plans (“OCF-18s”) that are in issue before me. OCF-18s usually set out the goals of the treatment, steps that will be taken to measure progress towards those goals, and the results from earlier treatment. In their absence, my source of information on the results from treatment must be found in the clinical notes and records of the treatment facility, Progressive Rehab Clinic. I also have the reports from assessors for both Ms. [G] and Allstate.

21In March 2016 Ms. [G] was assessed for entitlement to an income replacement benefit by Dr. Andrew Marchie, an orthopaedic surgeon. Dr. Marchie recommends a self-directed home-based program of exercise as follows:

It is recommended that Ms. [G] continue with a self-directed home exercise program, including core body strengthening program, bilateral shoulder range of motion exercises and daily walking regimen.

22In September 2016, Ms. [G] was assessed by Dr. Silver, a General Practitioner with a practice focussed on pain management. He examined Ms. [G] on behalf of Allstate to determine the reasonableness of a chronic pain assessment. He noted in his September 14, 2016 report: “It is likely that implementation of an independent daily active exercise program will yield Improvements in her pain levels.”

23On October 4, 2016, Ms. [G] was assessed on her own behalf by Dr. Karmy, a pain specialist, to determine if she suffered from a chronic pain condition. She advised Dr. Karmy:

Soon after the subject collision, Ms. [G] started to attend sessions of hot/cold therapy, massage, TENS, acupuncture and she also participated in an exercise program. The claimant reports that the treatments have been partially helpful in alleviating her pain, and the benefits are short-lived. Ms. [G] did not experience long-term improvement in her symptoms and functionality.

24Despite the lack of benefit from the facility-based treatment, Dr. Karmy recommended a program of facility-based treatment, home exercise and psychological treatment to address fibromyalgia and other conditions.

25Finally, Ms. [G] was examined by Dr. Boutias, a physiatrist, on behalf of Allstate on November 28, 2017. In his report, dated December 12, 2017 he notes: “Based on the nature of the injuries sustained as a result of the subject accident, it is my opinion that Ms. [G] has received a more than adequate course of facility-based physical therapy. I recommend that she continue performing the independent exercise program at home.”

26The medical opinion of the value of further facility-based treatment, including the current physiotherapy treatment plans, splits between those assessors retained by Ms. [G] who advocate for it, and those assessors retained by Allstate who argue that it is not necessary and Ms. [G] should engage in a self-directed home-based exercise program. Allstate also points to the reports of the actual treatment providers to support its point that she does not need further facility-based treatment.

27Allstate points to the fact that Ms. [G] has attended Progressive Rehab Clinic for treatment on 188 occasions since the accident. It further points to the assessment reports completed by the treatment providers after each attendance, none of which note any improvement in Ms. [G]’s condition since the previous treatment. This evidence aligns with Ms. [G]’s statement to Dr. Karmy about the lack of lasting benefit from the treatment she was receiving. I find that it would be both unreasonable and unnecessary to continue with treatment that is providing no benefit to Ms. [G]. I accept the conclusions of Allstate’s assessors that further facility-based treatment will be of no medical value and that Ms. [G] is better served by self-directed home-based exercises.

ORDER

28Based on the above, I find that Ms. [G] is not entitled to any of the benefits she claims, and I dismiss her claim. Since no payments are owed, no interest is payable.