Tchabrazian Kasbar v. Travelers Insurance, 2021 CanLII 30412

Citation: Kasbar v. Travelers Insurance, 2021 ONLAT 19-009400/AABS

Release date: 03/30/2021

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:

Tchabrazian Kasbar Applicant

and

Travelers Insurance Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: Clifford Singh, Counsel

For the Respondent: Kadey Schultz, Counsel

HEARD: By way of written submissions

BACKGROUND

1This proceeding, under the SABS the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), arises out of a motor vehicle accident (“MVA”) on October 29, 2016. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”) on August 21, 2019.

2The parties participated in a case conference on July 17, 2020. The respondent raised a preliminary issue because the applicant did not submit an Application for Accident Benefits (“OCF-1”) until nearly 17 months following the subject motor vehicle accident (“MVA”).

3The applicant explains he initially did not find it necessary to contact his insurer or make an application for benefits because he felt he was recovering from the injuries sustained in the motor vehicle accident (“MVA”). When he believed his aches and pains post-accident seemingly worsened over time, he did not know how to apply for accident benefits and therefore sought legal counsel. It was then, counsel submitted the OCF-1 dated March 18, 2018.

4The respondent takes the position that the applicant has provided no reasonable explanation as to why he took so long to file an application for statutory accident benefits.

ISSUE IN DISPUTE

5The issue to be decided is:

1. Is the applicant barred from proceeding with this LAT application pursuant to s.55(1) and s.32(1) of the Schedule due to his failure to notify the insurer of the circumstances giving rise to a claim for a benefit or has not applied for the benefit within the times prescribed by the Schedule.

RESULT

6The applicant is barred from proceeding with his application as he has not provided a reasonable explanation for the delay.

ANALYSIS

7Section 32(1) of the Schedule requires an insured person to inform an insurer of an accident within seven days, at which point the insurer will provide the insured with application forms for accident benefits. The applicant concedes that this timeline was not met and relies on s.34 which allows him to proceed with a late application for benefits if he has a “reasonable explanation” for delay.

8Although not bound by this decision I find (and the respondent agrees¹) that the Financial Services Commission of Ontario case of Horvath v. Allstate Insurance Company of Canada (FSCO A02-000482) is most helpful in listing principles to consider when interpreting a “reasonable explanation” for delay under s.34. The principles are:

i. An explanation must be determined to be credible of worthy of belief before its reasonableness can be assessed.

ii. The onus is on the insured person to establish a “reasonable explanation”.

iii. Ignorance of the law alone is not a “reasonable explanation”.

iv. The test for a “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.

v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

vi. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

9Submissions from both parties included clinical notes and records (“CNR’s”) of various professionals and the Examination Under Oath (“EUO”) transcript of Tchabrazian Kasbar, dated December 13, 2019.

Does the applicant have a reasonable explanation for the delay in submitting the OCF-1

10The applicant’s explanation for not applying for benefits is that:

i. He felt fine after the accident, believed he was recovering well and returned to work. He didn’t anticipate his injuries would worsen and necessitate a claim for benefits, and

ii. Once was he was concerned about his deteriorating health; he was unaware of how to claim for benefits.

When did the applicant determine his injuries were related to the MVA and that they worsened?

11When questioned during the EUO regarding why he waited almost 1.5 years post-accident to report the accident to his insurance company, he said “Just I thought maybe this is not happening to me from the accident, you know. And then when my situation has gone bad, so I said this whole thing has happened after the accident, you know, so that’s why. And to be honest, I don’t know to do those thing, you know, so it’s first time happening to me.”²

12The applicant claims he only became concerned about contacting his insurance company when he realized that he may have sustained injuries during the MVA that had worsened. The applicant considers his MVA injuries were at the root of his worsening health because his health started to get worse after the accident³.

13The CNR’S of his family physician, Dr. Rosemary Arnold⁴ show that:

i. The applicant saw his family doctor on December 7, 2016 and there was no mention of the symptomology ‘back pain and neck pain’ that the applicant later attributes to injuries sustained in the MVA.

ii. The applicant saw his family doctor on January 5, 2017 with complaints of lower back pain and pain in his leg, there was no reference to the MVA.

iii. On January 12, 2017 he visited the family doctor and complained of back and neck pain and told the doctor that he was involved in the MVA, 2 months prior and that he was rear ended. The doctor specifically notes “Now tells me about [the MVA ….rear ended]”.

iv. On January 13, 2017, he complained of neck and low back pain, acute lower pack pain and the doctor notes “P: contact insurer”.

14The applicant fails to provide a reasonable explanation as to why, in January 2017 when he reported to his family doctor that he experienced symptoms he related to the MVA, he did not consider contacting his insurance company, or why he did not take his doctor’s advice to contact his insurer.

15During the EUO the applicant stated that he did not recall his doctor ever mentioning anything about contacting his insurer⁵. This may be true. However, after the MVA, in October 2016, when he went from initially having almost no symptoms (he reported having slept, then waking normally, experiencing very little pain or dizziness⁶); to not having pain, or requiring any pain medication and returning to work⁷; he doesn’t explain why he failed to consider his MVA related injuries as “worsening” when he sought medical attention for them in January 2017.

16Although there are reports of symptomology that could be related to diabetic neuropathy, and there are references to neurosensory symptoms in the extremities, the applicant has not pointed to any medical opinion that these are related to the MVA or that any injury sustained in the MVA aggravated or contributed to any pre-existing and developing health issues. It is the applicant’s self reported opinion that because his health issues increased after the MVA, it is his injuries from the MVA that are the cause.

17I considered the applicant’s submission that “his vehicle was violently rear-ended (TAB 1)“⁸. TAB 1 contained the Motor Vehicle Collison Report for the subject accident. I reviewed the collision report; the CNR’s of the family doctor and the EUO to try and ascertain how the applicant might have a real and reasonable belief that his MVA is the causation for some serious symptomology that developed after the MVA. I found:

What evidence is there of injuries as a result of the subject MVA?

i. The Motor Vehicle Collision Report, line reference 37, shows the applicant was taken to the Grand River Hospital.

ii. The applicant’s EUO testimony reports being boarded and collared⁹ and taken to the hospital. He reports to being released without medication and that there was no x-ray or imaging done¹⁰.

iii. The applicant reports during his EUO that: his seatbelt seemed to be working properly; the airbags did not go off; his head hit his headrest and he did not hit any other body parts inside of the car; and to the best of his recollection, he did not lose consciousness¹¹.

iv. As already stated above, the CNR’s of the family doctor show that it was in January 2017 when the applicant first sought medical attention for symptoms, he related to the MVA of October of 2016. The applicant’s family doctor did not send him for further investigation such as a specialist referral; imaging or any physio treatment for the complaints that he attributed to the MVA.

How “violently rear-ended” was the applicant’s vehicle?

i. The Motor Vehicle Collision Report, (top of pay 2 of 2) provides a description of the damage to the applicant’s vehicle to be (quote) “DAMAGED REAR RIGHT TAILLIGHT, SCRATCH ON CENTER OF REAR BUMPER”

ii. The applicant reports fixing the vehicle himself as it was a little dent in the back¹²

18From the damage reported on the vehicle, without any medical evidence to the contrary, I cannot find it plausible that the applicant would have cause to believe that any injury sustained in this MVA could have precipitated any worsening health condition.

Is it a reasonable explanation that the applicant unaware of how to claim for benefits?

19The applicant takes a position that he did not know apply for accident benefits until March 18, 2018 when he retained counsel.

20In submissions the applicant makes reference to the Horvath v. Allstate principles (noted above in paragraph 8) making a comparison that “similarly, there is nothing in the evidence regarding Mr. Kasbar’s background, education, experience, or other personal characteristics which would make it difficult to believe that he was genuinely ignorant of the process of filing an Accident Benefits claim. If anything, his background and the fact that English is not his first language further bolster the notion that he would have been unable to understand even the most basic of legalese.”¹³ The applicant, in making reference to the transcript from the EUO, submits “It is evident that Mr. Kasbar would have a difficult time understanding any kind of insurance policy or any information related to same”¹⁴.

21Because the applicant failed to contact the insurer, he did not receive pursuant to s.32(2) of the Schedule:

i. The appropriate application forms [for benefits];

ii. A written explanation of the benefits available;

iii. Information to assist in applying for benefits.

22As the applicant did not have reference to this insurance information, it cannot be determined if he could or could not comprehend it. Regarding his difficulty with the English language, on review of the EUO and the various medical reports submitted, I did not find any suggestion that an interpreter might be helpful or necessary. Therefore, I do not find this to be a convincing reason for not applying for, or at the very least, not making enquiries as to how to claim for any accident benefits, until he chooses to do so in March of 2018.

23I consider the extensive delay from the date of the MVA in October 2016 to the date the applicant contacted the insurer in March 2018 to be presumptively prejudicial to the insurer because the significant delay prevented the insurer from obtaining contemporaneous medical examinations and records. This delay deprived the insurer of information about what effects, if any, the MVA had on the applicant. With evidence of several other medical conditions the delay in making an application makes it impossible to delineate between the effects of the MVA on pre-existing conditions and/or what may have developed as a result of the MVA.

24The applicant received medical attention before and after the MVA which would infer that any MVA related injuries, are currently or have been attended to during his treatment(s). I don’t find from the evidence that the applicant has been or will be denied treatment of his current symptomology because of a lack of accident benefit or that denial of these benefits would result in any hardship to the applicant.

CONCLUSION

25The applicant does not have a reasonable explanation for his delay in applying for accident benefits. Therefore, the applicant may not proceed with his application for these benefits.

Footnotes

1. 1Respondent submission paragraph 28 (TAB 9)
2. 2Paragraph 250 of the EUO transcript
3. 3Paraphrased from paragraph 250 of the EUO transcript
4. 4TAB 4 of the respondent’s submission and TAB 6 of the applicant’s submission
5. 5Paragraph 257 – 260 of the EUO transcript
6. 6Paragraph 122 – 124 of the EUO transcript
7. 7Paragraph 125 -130 of the EUO transcript
8. 8Paragraph 3 of the applicants’ submission
9. 9Paragraph 99 of the EUO transcript
10. 10Paragraph 108 -112 of the EUO transcript
11. 11Paragraph 102 – of the EUO transcript
12. 12Paragraph 72 – 74 of the EUO transcript
13. 13Applicant’s submissions paragraph 41
14. 14Applicant submission paragraph 41