21-004669/AABS

Licence Appeal Tribunal File Number: 21-004669/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:

Jolanta Zuchelkowski

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Terry Prowse

APPEARANCES:

For the Applicant:

Jolanta Zuchelkowski, Applicant

Meghan Fyall, Counsel

Nick Meister, Counsel

For the Respondent:

Marva Harriott-Stewart, Accident Benefits Supervisor

Linda Kiley, Counsel

Glen Bushi, Counsel

HEARD: by Videoconference:

October 24, 25, 26, 27 and 28, 2022

OVERVIEW

1The applicant’s adult son was involved in an automobile accident on May 2, 2015.

2On August 18, 2017, Jolanta Zuchelkowski, the applicant, applied for disability benefits for herself, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). She was denied benefits by the respondent, Zenith Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3The parties participated in a videoconference hearing on October 24-28, 2022 and filed written closing submissions on November 7, 2022.

4The applicant argued that she sustained psychological impairments because of the physical injuries her son sustained in the accident. The substantive issues in dispute include whether the applicant sustained a catastrophic impairment as defined in the Schedule, and whether she is entitled to six medical/rehabilitation treatment plans for psychological services, reimbursement for transportation expenses, interest, and an award.

PRELIMINARY ISSUES

5The respondent raised the following three preliminary issues. They concern whether the applicant is barred from proceeding with a claim for accident benefits, or is barred from receiving such benefits until she attends an examination under oath (EUO):

i. Is the applicant barred from proceeding with her claim for statutory accident benefits as she failed to notify the respondent of the circumstances giving rise to a claim for statutory accident benefit within the appropriate timeframe and without a reasonable excuse?

ii. Is the applicant an insured person as defined by s. 3(1)a(ii) of the Schedule? Did the applicant suffer a psychological injury as a result of an accident on May 2, 2015 that resulted in a physical injury to the applicant’s son?

iii. Is the applicant is barred from receiving any accident benefits until she undergoes an EUO under section 33(6) of the Schedule? Was the applicant incapable of being examined under oath because of her physical, mental or psychological condition?

RESULT

6I find the applicant is statute-barred from proceeding with her claim for statutory accident benefits as she failed to notify the respondent of the circumstances giving rise to the claim without a reasonable explanation. Therefore, it is unnecessary for me to consider the remaining preliminary issues.

ANALYSIS

7Pursuant to section 32(1) of the Schedule, a person who intends to apply for statutory accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances that give rise to the entitlement to the benefit, or as soon as practicable after.

8Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, as required by section 32(2). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the form.

9I note that section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). Thus, without a reasonable explanation, s. 55 of the Schedule bars applicants from applying to the Tribunal if they have not notified the insurer of the circumstances giving rise to a claim for a benefit or have not submitted an application for the benefit within prescribed time limitations

The application was filed outside of the time limitations

10I find that the applicant contravened Section 32(1) of the Schedule by not notifying the respondent within 7 days of the circumstances that give rise to the entitlement to the benefit, or as soon as practicable after.

11The parties agree that the subject accident involving the applicant’s son occurred on May 2, 2015. The parties also agree that the applicant applied for accident benefits on August 18, 2017. Where the parties disagree is whether the time period between the date of the accident and the date of the application constitutes a delay in excess of that permitted to apply for disability benefits.

12The respondent submits that the applicant should be barred from proceeding with her claim. It notes that from the date of the accident over two years passed before the applicant provided any notification to it that she would be seeking accident benefits. The respondent’s position is that this constitutes a delay in excess of that permitted by s. 32 of the Schedule.

13The applicant submits that she applied for disability benefits in August 2017, within four days of the date she first approached her doctor about psychological issues related to her son’s accident.

14Contrary to the applicant’s position, the Schedule does not provide that an applicant may apply for accident benefits on the seventh day after approaching a doctor with complaints related to a prior accident. It would all but eliminate the requirement for time limits if applicants simply needed to suggest a causal link between an alleged impairment and a prior accident, regardless of when it occurred. Likewise, it would all but eliminate an insurer’s ability to predict future costs from prior automobile claims.

15In this instance, the seven-day time limit under s. 32 was clearly not met, as the applicant applied for benefits from the insurer 2 years, 3 months and 16 days after her son’s automobile accident.

There was no reasonable explanation

16I find the applicant did not provide a reasonable explanation for the delay.

17My interpretation of a “reasonable explanation” is guided by Horvath v. All State Insurance Co. of Canada, 2003 CarswellOnt 5651. In that case, the arbitrator considered what constituted a reasonable explanation, tested against the following guiding principles:

i. An explanation must be determined to be credible or 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 “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; and

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.

18The applicant argues that the respondent did not request an explanation for the delay. The applicant contends that the delay was not prejudicial to the respondent. She submits that she applied four days after she knew she had psychological issues.

19The respondent’s position is straightforward: the applicant failed to provide notification of the circumstances that gave rise to a claim for statutory accident benefit and did not provide a reasonable explanation for the delay.

20First, I do not find that the applicant’s stated reasons for the delay constitute a reasonable explanation. There is no statutory requirement for the insurer to request a reason for the delay. Further, as described above, a lack of prejudice to the insurer does not make an explanation automatically reasonable.

21It is clear that the respondent attempted to receive further information about the claim from the applicant and was largely unsuccessful because she would not provide it. Ten days after receiving the application, on August 31, 2017, the respondent replied that it was in the process of confirming the policy coverage in force at the time of the accident in 2015. It requested the OCF-3 Disability Certificate. The applicant’s family physician did not complete the Disability Certificate for almost another year, in July 2018. Another important example of the respondent’s attempt to obtain information is its request for the applicant to attend an EUO. The applicant did not attend. Her reasons for not attending the EUO were contained in a February 25, 2019 letter by Hannah Rockman, psychologist, who described the applicant’s psychological presentation. When speaking of the EUO, she stated, “…the stress of being questioned and asked to justify her feelings is likely to make her worse and, in turn, will increase her feelings of depression and being neglected”.

22The evidence clearly shows that the applicant was having some psychological difficulties well before her son’s accident, that continued during the period of the accident and following it. For example, during cross-examination, Dr. Szulc, the applicant’s primary care physician, acknowledged that as early as 2009, she recorded the applicant’s complaints of issues with her son. These included but were not limited to his driving under the influence, threatening police with a knife and indications that he was incarcerated for a period but not sticking to the requirements of his house arrest. Dr. Szulc agreed that in 2009, she wrote that the applicant had stress and depression secondary to family issues at home. The medical records following the period of her son’s accident also indicate that her concerns were primarily related to her son’s use of drugs, his lifestyle and rather significant troubles with the law.

23The evidence does not support the applicant’s position that her psychological issues only emerged in 2017, more than two years after her son’s accident, or that her psychological issues somehow contributed to the delay in applying for accident benefits.

24I find that the applicant failed to comply with the time limitations set out in s. 32 of the Schedule and failed to provide a reasonable explanation for her failure to do so, under s. 34. Therefore, pursuant to Section 55(1) of the Schedule, she is statute-barred from applying to the Tribunal.

25As this preliminary issue disposes of the application, there is no need to consider the substantive issues in dispute.

ORDER

26I conclude that the applicant is statute-barred under s. 55 of the Schedule from proceeding with her claim for statutory accident benefits as she failed to notify the respondent of the circumstances giving rise to the claim without a reasonable explanation.

27The application is dismissed.