Licence Appeal Tribunal File Number: 22-009409/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:
Kalaimakal Vimalananthan
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Kalaimakal Vimalananthan, Applicant
Shahzad Ayub, Counsel
For the Respondent:
Ayesha Mehreen, Counsel
Heard by way of written submissions
OVERVIEW
1Kalaiakal Vimalananthan, the applicant, was involved in an incident on September 3, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company (“Certas”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue in dispute is whether the applicant’s application is time-barred because all of the treatment plans in dispute were submitted more than five years after the accident pursuant to section 20 of the Schedule.
RESULT
3The application is dismissed. The applicant has not met her evidentiary burden to establish that this application was not time-barred.
ANALYSIS
Background
4On September 3, 2016, the applicant was involved in an accident. She submitted an Application for Accident Benefits (“OCF-1”) on September 20, 2016 and a Disability Certificate (“OCF-3”) on September 26, 2016. She submitted an OCF-18 on February 23, 2017 for psychological services. The respondent denied the OCF-18 on March 18, 2017 because her injuries were in the Minor Injury Guideline (“MIG”) and the medical records did not support any psychological impairment as a result of the accident. The applicant did not apply to the Tribunal to dispute the denial of benefits.
5On October 26, 2021, the applicant submitted a Treatment and Assessment Plan (“OCF-18”) for psychological services. The OCF-18 was denied by the respondent on November 5, 2021 because her injuries fall within the MIG.
6On June 7, 2022, the applicant submitted an OCF-18 for chiropractic services. On June 22, 2022, she was informed that the OCF-18 was denied because her injuries fall within the MIG.
7On September 26th, 2022, the applicant submitted an application to the Tribunal to dispute the denials dated November 5, 2021 and June 22, 2022.
Parties’ positions
8The respondent submits that the application is time-barred pursuant to section 20 of the Schedule. According to section 20 of the Schedule, the medical, rehabilitation and attendant care benefits are not payable for expenses incurred beyond 260 weeks or 5 years unless the person is the under the age of 18, has catastrophic injuries or has purchased optional benefits.
9At the time of the accident, the applicant was 46 years old, and she had not purchased optional benefits. The applicant has not sustained catastrophic injuries, in fact one of the issues in dispute for this applicant is whether her injuries are still within the MIG. The respondent submits that as of September 3, 2021, it has been 260 weeks after the accident occurred.
10The respondent submits that the applicant had received treatments after the subject accident and when her treatment plans were denied, she was provided with denial letters pursuant to the Schedule. She was also represented by a legal representative. She did not act diligently in this case and did not provide any updated information to show that she continues to have accident-related issues. It would be unfair to allow her to pursue her claim since she knew about her claim and was adequately represented to pursue her claim in case of any denials. Furthermore, allowing her to pursue a claim after the 260 weeks would be contrary to the provisions of section 20 of the Schedule.
11The applicant did not file submissions or evidence with the Tribunal. Both parties were in attendance for the case conference conducted on May 10, 2023. A written hearing was scheduled, and specific written hearing submission deadlines were set. The applicant did not request an extension of time to file her submissions. The applicant did not respond after being served with the respondent’s submissions.
ANALYSIS
12Pursuant to section 20(1) of the Schedule and subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,
a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident; or
b) after the insured person’s 28th birthday, in the case of an insured person who was under 18 years of age at the time of the accident.
13Subsection 20(2) states that the time limits set out in subsection (1) do not apply in respect of an insured person,
a) who sustains a catastrophic impairment as a result of the accident; or
b) who is entitled to optional medical, rehabilitation and attendant care benefits under paragraph 4 of subsection 28(1) or catastrophic impairments benefits under paragraph 5 of subsection 28(1).
14The accident took place on September 3, 2016. At the time of the accident, the applicant was 46 years old. There has been no determination that she sustained a catastrophic impairment, and she did not purchase optional benefits. Therefore, the exceptions under section 20(2) do not apply. By operation of section 20(1), the last day that the applicant could have claimed benefits for this accident was August 29, 2021. I find that the OCF-18s were submitted after the 260-week mark. Therefore, I find that there is no coverage.
ORDER
15The application is dismissed.
Released: August 24, 2023
__________________________
Tavlin Kaur
Adjudicator