Licence Appeal Tribunal File Number: 21-003414/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:
Glendon Rhoden
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Glen Cox, Paralegal
For the Respondent:
Kylie Weber, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Glendon Rhoden (“G.R.”), was involved in an automobile accident on July 24, 2018 and sought benefits from the respondent, Dominion, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
PRELIMINARY ISSUS IN DISPUTE
2Is G.R. statute barred from proceeding with his claim for a medical benefit for psychological services because he failed to commence his application within two years after Dominion’s refusal to pay the amounts claimed pursuant to s. 56 of the Schedule?
3Is G.R. statute barred pursuant to s. 55(1)(2) from proceeding wit his claim for various medical benefits including a determination with respect to the Minor Injury Guideline (“MIG”) as he failed to attend IEs scheduled pursuant to s. 44 of the Schedule?
RESULT
4G.R. is statute barred from proceeding with his application as it pertains to the treatment plan in the amount of $2,200.00 for psychological services dated November 16, 2018.
5G.R. is statute barred from proceeding with his claim for medical benefits, including a determination with respect to the MIG, as he failed to attend properly scheduled s. 44 IEs.
ANALYSIS
Is G.R. statute barred from disputing Dominion’s denial of the OCF-18 dated November 16, 2018?
6G.R. is requesting an extension of the two-year limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act (“LAT Act”).
7Section 7 of the LAT Act allows the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying the extension and granting the relief sought. In order to determine whether an extension of time is granted, the Tribunal weighs four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal.1 The granting of an extension of time depends on the specific facts of each case.2
8G.R. submits that he has satisfied the four factors as follows:
i. He intended to proceed with his appeal after recovering from coronary artery bypass surgery;
ii. His Tribunal application was filed on February 25, 2021 after recovering/rehabilitating from surgery;
iii. Dominion was not prejudiced as it continued to actively engage in handling the disputed issues. Further, the outcome of the surgery was key for Dominion to assess a medical condition that may prevent G.R. from reaching maximum medical recovery from his accident-related injuries; and
iv. The claims for treatment are reasonable and necessary for rehabilitation.
9I agree with Dominion that G.R. failed to provide or point me to any factual evidence in support of his intention to appeal within the limitation period. I will discuss the additional failure of G.R.’s request for an extension, as it pertains to his failure to attend a s. 44 IE.
Is G.R.’s claim for benefits statute barred due to his non-compliance pursuant to s. 44?
10Section 55(1)2 of the Schedule sets out that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44, but the insured person has not complied with its request for attendance. I find that G.R. is statute barred from proceeding with his claim due to his non-compliance pursuant to s. 44 of the Schedule.
11G.R. submits that he was unable to attend s. 44 physiatry IE scheduled for December 19, 2019 because he was recovering from heart surgery performed on March 11, 2019.
12In response, Dominion argues that it was never advised that his heart condition prevented him from participating in the IE. It submits that this explanation was only provided in his submissions on the preliminary issue, over two years after the non-attendance. Dominion’s position is that there is no evidence to establish that G.R. was prevented from attending the IE. Further, that the evidence in fact supports that he was able to