Licence Appeal Tribunal
Released Date: 01/24/2022
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.
Between:
Harjit Gill
Applicant
and
Aviva General Insurance
Respondent
AMENDED DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
Justin Mariani, Paralegal
For the Respondent:
Sarah Fasih, Counsel
Doha Tambal, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1The applicant, Harjit Gill, was injured in an automobile accident on March 13, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)1 from Aviva General Insurance, the respondent.
2The respondent denied the applicant’s various claims for treatment. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
3A case conference was held on October 6, 2020, at which time the respondent raised a preliminary issue regarding the limitation period in s. 56 of the Schedule and the applicant’s claims for treatment. The matter ultimately proceeded to a written hearing to address both the preliminary and substantive issues.
PRELIMINARY ISSUE IN DISPUTE
4The following preliminary issue is to be decided:
(i) Is the applicant statute-barred from proceeding with her claim for the following benefits as she failed to commence her application with the Tribunal within two years after the respondent’s refusal to pay pursuant to s. 56 of the Schedule:
(a) $599.00 for physiotherapy services recommended by DRS Physio & Wellness in a treatment plan (OCF-18) dated June 9, 2017;
(b) $1,463.52 for physiotherapy and massage therapy recommended by DRS Physio & Wellness in an OCF-18 dated July 4, 2017;
(c) $1,176.86 for chiropractic services recommended by DRS Physio & Wellness in an OCF-18 dated July 5, 2017; and/or
(d) $876.84 for chiropractic treatment recommended by DRS Physio & Wellness in an OCF-18 dated September 20, 2017?
ISSUES IN DISPUTE
5The following substantive issues are to be decided:2
(i) Is the applicant entitled to $599.00 for physiotherapy services recommended by DRS Physio & Wellness in an OCF-18 dated June 9, 2017?
(ii) Is the applicant entitled to $1,463.52 for physiotherapy and massage therapy recommended by DRS Physio & Wellness in an OCF-18 dated July 4, 2017?
(iii) Is the applicant entitled to $1,176.86 for chiropractic services recommended by DRS Physio & Wellness in an OCF-18 dated July 5, 2017?
(iv) Is the applicant entitled to $876.84 for chiropractic treatment recommended by DRS Physio & Wellness in an OCF-18 dated September 20, 2017?
(v) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
(vi) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant is statute-barred from proceeding with her application to the Tribunal regarding all of the disputed treatment plans as the application was filed outside of the two-year limitation period as set out in s. 56 of the Schedule. The applicant is not entitled to an award under Regulation 664 or to interest, and this application is dismissed.
ANALYSIS
Preliminary Issue – Limitation Period
7Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial.
8The respondent submitted that the disputed treatment plans were denied on the following dates:
Date of Treatment Plan
Amount in Dispute
Date of Denial Letter(s)
June 9, 2017
$599.00
June 30, 2017
July 4, 2017
$1,463.52
August 8, 2017 August 16, 2017 September 28, 2017
July 5, 2017
$1,176.86
July 27, 2017 August 16, 2017 September 28, 2017
September 20, 2017
$876.84
November 6, 2017
9As the applicant submitted that she filed her Application to the Tribunal concerning the disputed treatment plans on April 27, 2020,3 I find that the application was filed outside of the two-year limitation period provided for in s. 56 of the Schedule.
10The applicant, however, appears to challenge when the limitation periods began to run based upon the sufficiency of the denials under s. 38(8) of the Schedule, despite not explicitly citing this section in her submissions. The applicant alleged that the respondent’s denials were “boilerplate notices” without reference to the insured’s medical condition and any other applicable rationale for the denials.4
11Even if I agreed with the applicant that the respondent’s notices did not comply with s. 38(8) of the Schedule, such a finding does not mean that the limitation period under s. 56 has not yet started to run. The consequences to an insurer for failing to comply with s. 38(8) are set out in s. 38(11) of the Schedule. Under this section, an insurer is required to pay for all goods, services, assessments, and/or examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the treatment plan and ending once it gives proper notice. There are no consequences in s. 38(11) that affect the limitation period in s. 56.
12Moreover, the reasons for the denial need not be legally correct for the limitation period to commence; it is the denial of a benefit that starts the clock.5 The refusal need only be “clear and unequivocal.”6 Here, each of the denial letters listed in paragraph [8] above stated that $0.00 of the respective treatment plans were payable. Therefore, I find that the respondent’s denials were clear, unequivocal, and referred to the treatment plan in dispute.
13The applicant did not requested relief under s. 7 of the Licence Appeal Tribunal Act, 1999.7 Without such submissions, I decline to exercise my discretion to extend the limitation period provided for in s. 56 of the Schedule. As a result, I find that the applicant is statute-barred from pursuing her claim to the Tribunal for the following benefits pursuant to s. 56 of the Schedule:
(i) $599.00 for physiotherapy services recommended by DRS Physio & Wellness in an OCF-18 dated June 9, 2017 as the limitation period regarding this issue on June 30, 2019;
(ii) $1,463.52 for physiotherapy and massage therapy recommended by DRS Physio & Wellness in an OCF-18 dated July 4, 2017 as the limitation period regarding this issue expired at the latest on September 28, 2019;
(iii) $1,176.86 for chiropractic services recommended by DRS Physio & Wellness in an OCF-18 dated July 5, 2017 as the limitation period regarding this issue expired at the latest on September 28, 2019; and
(iv) $876.84 for chiropractic treatment recommended by DRS Physio & Wellness in an OCF-18 dated September 20, 2017 as the limitation period regarding this issue expired on November 6, 2019.
Award
14Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
15As I have found that there are no payments of benefits or costs owing, there is no basis upon which to consider an award in this matter.
Interest
16As there are no benefits owing, no interest is payable.
CONCLUSION
17For the reasons outlined above, I find that:
(i) the applicant is statute-barred from pursuing her claim to the Tribunal for the following benefits pursuant to s. 56 of the Schedule:
(a) $599.00 for physiotherapy services recommended by DRS Physio & Wellness in an OCF-18 dated June 9, 2017;
(b) $1,463.52 for physiotherapy and massage therapy recommended by DRS Physio & Wellness in an OCF-18 dated July 4, 2017;
(c) $1,176.86 for chiropractic services recommended by DRS Physio & Wellness in an OCF-18 dated July 5, 2017; and
(d) $876.84 for chiropractic treatment recommended by DRS Physio & Wellness in an OCF-18 dated September 20, 2017;
(ii) The applicant is not entitled to an award under Regulation 664 or to interest; and
(iii) This application is dismissed.
Released: February 3, 2022
Lindsay Lake
Adjudicator
Footnotes
- O. Reg. 34/10.
- In the applicant’s submissions, she maintains that the issue of whether or not her injuries were predominantly minor as defined in s. 3 of the Schedule was resolved and, therefore, whether her injuries fell within the MIG is no longer in dispute despite being listed as an issue in dispute in the Tribunal’s October 6, 2020 Case Conference Report and Order. As a result, I accept that this issue is no longer in dispute and does not require a determination by the Tribunal (see para. 17 of the Reply Submissions of the Applicant).
- Written Submissions of the Applicant, para. 3.
- Written Submissions of the Applicant, paras. 4-8.
- See Sietzema v. Economical Mutual insurance Company, 2014 ONCA 111.
- Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) at para. 8.
- S.O. 1999, c. 12, Sched. G.