Song v. Aviva Insurance Company of Canada, 2022 CanLII 45274

Citation: Song v. Aviva Insurance Company of Canada, 2022 ONLAT 20-007917/AABS

Licence Appeal Tribunal File Number: 20-007917/AABS

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:

Yang Song

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Catherine Zingg, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on September 23, 2017. He was the driver of a motor vehicle when a collision occurred, impacting the left side of the vehicle. Following the accident he reported to be suffering from pain in the cervical, lumbar and thoracic areas of the spine, pain in his shoulders, headaches, radiculopathy, and psychological concerns.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was conducted on November 24, 2020. A written hearing was scheduled. Both the preliminary issue raised and the substantive issues in dispute were to be heard in one written hearing.

PRELIMINARY ISSUE

4The respondent raised the following preliminary issue:

i. Is the applicant barred from proceeding with the income replacement benefit (“IRB”) pursuant to s. 56 of the Schedule?

ISSUES

5The following issues are to be decided:

i. Is the applicant entitled to an income replacement benefit in the amount of $400 per week from March 1, 2020 to date and ongoing?

ii. Is the applicant entitled to $2,146.02 for chiropractic services recommended by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) dated January 5, 2019?

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

ANALYSIS

Is the IRB Statute-Barred Pursuant to s. 56 of the Schedule?

6Pursuant to s. 56 of the Schedule, the applicant’s application for IRB is statute-barred, as it was filed with the Tribunal more than two years after the benefit was denied.

7Section 56 of the Schedule states that an application to the Tribunal under s. 280(2) of the Insurance Act “shall be commenced within two years after the insurer’s refusal to pay the amount claimed”.¹

8The respondent submits the IRB was denied in an Explanation of Benefits (“EOB”) dated January 30, 2018. The applicant submits the benefit was denied in an Explanation of Benefits dated November 23, 2020. The application was filed before the Tribunal on July 13, 2020.

9When I examine the EOB dated January 30, 2018, I am satisfied that it contains a clear and unequivocal denial, specifically stating that Aviva has determined “you are not eligible for the Income Replacement Benefit” (emphasis in original).² The correspondence complies with Smith v. Co-operators³, as it makes direct reference to the two-year limitation period and in straightforward, clear language informs the applicant of the dispute resolution process. This includes steps required to file an application and the address of the Tribunal for service.⁴

10Thus, to avoid running afoul of the two-year limitation period in s. 56, the applicant would have had to file an application to dispute this denial by January 30, 2020. Unfortunately, this application was not filed until July 13, 2020, or more than five months beyond the two-year limit. I must now turn to an analysis pursuant to s. 7 of the LAT Act⁵ to determine if the limitation period should be extended in this matter.

Should the Limitation Period Be Extended pursuant to s. 7 of the LAT Act?

11In Fratarcangeli v. North Blenheim Mutual Insurance Company⁶, the Divisional Court affirmed the Tribunal’s jurisdiction to apply s. 7 of the LAT Act to extend the limitation period pursuant to s. 56 of the Schedule.

12To determine whether an extension of the limitation period should be granted pursuant to s. 7 of the LAT Act, the Tribunal shall consider the following four factors:

1. The existence of a bona fide intention to appeal;

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.⁷

13The applicant does not have to satisfy all four factors, but they serve as a guide to determine whether the justice of the case warrants an extension of the limitation period.

14I am not satisfied the applicant had a bona fide intention to appeal the denial of the IRB within the two-year period. In fact, the applicant did not even list the IRB as an issue in dispute in the application filed July 13, 2020. This issue was not added until the case conference was conducted on November 24, 2020.

15The applicant did not file this application within two years of the denial, or by January 30, 2020. Instead, the applicant filed this application on July 13, 2020. The length of the delay is 156 days, or five months 13 days. This is not otherwise a case where the limitation period had lapsed for a few days or weeks. The applicant has provided no explanation for this delay, nor why it failed to file this application for IRB within the statutory two-year period.

16I am satisfied the respondent has been prejudiced by this failure to file within the statutory limitation period. The respondent was denied the opportunity to assess the claimant in a timely manner by scheduling an insurer’s examination (“IE”). Given the passage of time, the respondent has been deprived of obtaining a contemporaneous IE related to the applicant’s accident-related impairments and to the legal test(s) for IRB as per the Schedule.

17The applicant has the evidential burden of meeting the substantial inability test within 104 weeks of the accident and/or the complete inability test beyond 104 weeks of the accident to claim an IRB. The applicant has provided no expert opinion or evidence that speaks to the test(s) for IRB, nor any commentary regarding potential quantum of benefits. Thus, I cannot otherwise conclude the applicant has demonstrated the merits of this claim for IRB.

18When I consider the totality of these factors, I am not persuaded that s. 7 of the LAT Act applies to extend the statutory limitation period. Thus, the applicant’s claim for IRB is statute-barred pursuant to s. 56 of the Schedule, as it was not filed within the two-year limitation period, or by January 30, 2020.

$2,146.02 for Chiropractic Services

19Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

20The applicant has not met his onus of proving entitlement to the proposed OCF-18 is reasonable and necessary on a balance of probabilities.

21Aside from the OCF-18 prepared by Dr. Palantzas dated January 5, 2019⁸, the applicant has provided no additional evidence related to his alleged physical accident-related impairments. The clinical notes and records provided by the applicant’s Family Physician, Dr. Ye Juan, speak almost exclusively on his pre-existing medical conditions, namely his cardiac-related symptoms following his heart attack in November 2016.⁹ Otherwise, the additional report and records provided speak to psychological symptoms that are not disputed in this application.

22Instead, the applicant relies on the IE report provided by Dr. Mark Goldstein, rendered following a physical assessment of the applicant conducted May 15, 2019.¹⁰ This follows a previous Assessment Report provided by Dr. Goldstein dated August 15, 2018 where he found a previous OCF-18 partially reasonable and necessary and opined the applicant would benefit from 6 x 1-hour sessions for chiropractic treatment.¹¹

23In Dr. Goldstein’s second report dated May 29, 2019 he concludes the applicant continues to suffer persistent myofascial pain of the neck and a structural impairment relative to chronic pain, probable muscular deconditioning, and cervical spine sprain/strain. He further notes there is no functional range of motion impairments. Finally, he opines that the applicant will obtain no benefit from the goods and services outlined in this OCF-18, as the applicant has been provided similar treatment for nine months with no significant improvement. The applicant is encouraged to engage in self-directed home exercise, yoga, and swimming.¹²

24Dr. Goldstein had the benefit of conducting two physical examinations of the applicant approximately nine months apart. When the chiropractic treatment approved in the first report failed to alleviate the physical impairments and symptoms suffered, he concluded that additional chiropractic treatment was not reasonable and necessary pursuant to the Schedule. The applicant has provided no expert opinion related to the applicant’s physical impairments to rebut this opinion.

25Thus, I cannot conclude the applicant has met his evidentiary burden of establishing this chiropractic treatment is reasonably necessary pursuant to the Schedule. This treatment plan is not payable as a result.

Interest

26Interest is only payable on overdue payment of benefits pursuant to section 51 of the Schedule. As no payments are overdue, no interest is payable.

ORDER

27The application is dismissed, and the applicant is not entitled to:

i. An income replacement benefit in the amount of $400 per week from March 1, 2020 to date and ongoing;

ii. $2,146.02 for chiropractic services;

iii. Interest on any overdue payment of benefits.

Footnotes

1. 1R.S.O. 1990, c.I.8.
2. 2Submissions of the Respondent, Tab 13.
3. 3Smith v. Co-operators, 2002 SCC 30, at para. 14. Written Submissions of the Applicant, Tab 16.
4. 4Submissions of the Respondent, Tab 13.
5. 5Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12 Sched. G (“LAT ACT”).
6. 62021 ONSC 3997 (Div. Ct.).
7. 7Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) para. 14.
8. 8Written Submissions of the Applicant, Tab 6.
9. 9Written Submissions of the Applicant, Tab 2. Submissions of the Respondent, Tab 12.
10. 10Written Submissions of the Applicant, Tab 12.
11. 11Written Submissions of the Applicant, Tab 15.
12. 12Written Submissions of the Applicant, Tab 12, pgs. 9-10.