Citation: Edmonds v. Wawanesa Mutual Insurance, 2024 ONLAT 21-003968/AABS

Licence Appeal Tribunal File Number: 21-003968/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:

Ashanna Edmonds

Applicant

and

Wawanesa Mutual Insurance

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Jessica Friend, Paralegal

For the Respondent: Eric Boates, Counsel; Michael Brown, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Ashanna Edmonds, the applicant, was involved in an automobile accident on October 21, 2018, 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, Wawanesa Mutual Insurance and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES

2Preliminary Issues: The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for the following benefits because the applicant failed to dispute their denial within the 2- year limitation period?

(a) $2,520.00 for an orthopedic assessment, proposed by Princeton Hills Medical Assessments Inc., in a plan submitted January 24, 2019 and denied February 6, 2019, and;

(b) $1,977.05 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc., in a plan submitted February 20, 2019 and denied March 4, 2019?

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $4,512.14 for psychological services, proposed by Princeton Hills Medical Assessments Inc., in a treatment plan/OCF-18 ("plan") submitted March 6, 2019 and denied April 2, 2019?

iii. Is the applicant entitled to $2,520.00 for an orthopedic assessment, proposed by Princeton Hills Medical Assessments Inc., in a plan submitted January 24, 2019 and denied February 6, 2019?

iv. Is the applicant entitled to $1,977.05 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc., in a plan submitted February 20, 2019 and denied March 4, 2019?

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

RESULT

4For the preliminary issue, I find that the applicant is barred by virtue of s. 56 of the Schedule from disputing the orthopaedic assessment treatment plan in the amount of $2,520.00; and the physiotherapy services treatment plan in the amount of $1,977.05 for failure to dispute the denied plans within the two-year limitation period.

5I also find that the applicant has failed to demonstrate that removal from the MIG is warranted. The medical evidence does not establish that her accident-related injuries fall outside the MIG. The parties agree that the MIG limits are exhausted. It is not necessary to consider whether the plan for psychological services is reasonable and necessary and therefore, no interest is payable on any overdue amounts.

6The application is dismissed.

ANALYSIS

Preliminary Issues

7The preliminary issue to be decided is whether the applicant is barred under s.56 of the Schedule from proceeding to a hearing for an orthopaedic assessment and physiotherapy services listed in issues 3 (iii) and 3 (iv) above because she failed to file an application with the Tribunal to dispute the denial of these benefits within the two-year limitation period.

8Sections 55(1)1 and 56 of the Schedule bars the applicant from applying to the Tribunal more than two years after the benefit was denied.

9The respondent submits that the applicant added issues 3 (iii) and 3 (iv) to the application on April 7, 2021, which is beyond the two-year limitation period from the dates the benefits were denied on February 8, 2019 and March 6, 2019. The respondent further submits that the applicant did not attend two scheduled case conferences on April 7, 2022 and January 30, 2023 without explanation.

10The respondent further submits that the benefits in dispute in issues 3 (iii) and 3 (iv) were denied in clear and unequivocal denials on February 8, 2019 and March 6, 2019.

11The applicant submits that she should be able to proceed to the substantive hearing. Although, the applicant mentions that the orthopaedic assessment should be payable pursuant to s.38(8) and s. 38(11) of the Schedule, she makes no submissions that the respondent's denials are non-compliant with the Schedule. I find the respondent's denials were sufficient in providing reasons that the applicant remains in the MIG in the absence of compelling medical evidence of a pre-existing condition or psychological impairment.

Should the limitation period be extended pursuant to s. 7 of the LAT Act?

12The applicant argues there is only a 58- and 32-day delay from the denial of the benefits to the date she filed an application with the Tribunal and added the issues to the dispute six days later. The applicant does not provide a reason for the delay and submits the short delay itself is a valid reason to waive the limitation period.

13Pursuant to s.7 of the Licence Appeal Tribunal Act, ("LAT Act"), the Tribunal has statutory discretion to extend the two-year limitation period in s. 56 if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting the relief. The applicant submits that the Tribunal should exercise its jurisdiction to extend the limitation period. The respondent submits the applicant was represented during the appeal period and has no reason for missing the limitation period.

14When considering whether to exercise discretion under s.7, the Tribunal considers the following four factors set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492: 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. These factors are not strict elements that must each be met in order to grant an extension of time, rather a holistic approach must be taken to the analysis. No one factor is determinative.

15The respondent submits the applicant was represented during the appeal period and she has not provided any reason for missing the two-year limitation period before filing an application. The respondent submits the applicant did not intend to pursue her appeal and she added further delay by her non-attendance at a case conference on April 7, 2022 and January 30, 2023 without explanation. The respondent argues there is a prejudicial effect to the insurer in its right to rely on limitation periods.

16I am satisfied that the applicant had no intention to appeal the denial of the plans listed in issues 3 (iii) and 3 (iv) within the two-year limitation period since she did not list these issues in dispute until after her application was filed. The applicant makes no submissions to explain the delay in either filing her application or in adding the denied plans to the dispute within the statutory two-year period.

17I find that the length of the delay is only a single factor and does not determine the appropriateness of extending a limitation period. Given the absence of any reason for the delay, and the respondent's right to rely on the limitation period, I am not persuaded that I should apply s.7 of the LAT Act to extend the statutory limitation period. Thus, the applicant's claim for an orthopaedic assessment and physiotherapy services is statute-barred pursuant to s.56 of the Schedule, as it was not filed within the two-year limitation period, or by February 8, 2021 and March 6, 2021.

18The applicant has made no submissions regarding the purported invalidity of the respondent's denials or the reason for her failure to dispute the denials within the two-year limitation period. Since I have found the denials were sufficient, and the applicant failed to file her application within the two-year limitation under s.56 of the Schedule, I find that she is statute barred from applying to the Tribunal regarding the benefits listed in issues 3 (iii) and 3 (iv).

Substantive Issues

The applicant has failed to demonstrate that she suffers from accident-related injuries that warrant removal from the MIG

19Section 18 (1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

20An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s.18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

21The applicant submits that she should be removed from the MIG based on the following accident-related physical and psychological injuries:

a. her diagnosis of chronic pain;

b. her psychological injuries.

22To this end, the applicant relies on the clinical notes and records of Dr. Afsaneh Asfar, family physician, a report of Dr. Ilya Gladshteyn, psychologist and various clinic records. Although, the applicant has reported a pre-existing condition from a prior accident, she has not provided any medical documentation regarding a pre-existing condition that prevents recovery within the MIG.

23In response, the respondent submits that the applicant's injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the s.44 Insurer Examination ("IE") reports of Dr. Seyed Hosseini, physiatrist, Dr. Arnold Rubenstein, psychologist, Dr. Michael Hanna, general practitioner, Dr. Jason Bacchiochi, psychologist and Anna Mastrosov, occupational therapist and various clinical notes and records of treating physicians and clinics.

The applicant has not established accident-related chronic pain for removal from the MIG

24I find that the applicant has not established on a balance of probabilities that she sustained chronic pain with functional impairment as a result of the accident.

25The applicant submits that she should be removed from the MIG on account of her accident-related chronic pain. Dr. Asfar notes her intermittent mechanical back pain beginning over 3 years after the accident and following the birth of her daughter on October 20, 2019. Dr. Afsar also notes the applicant works as a receptionist in an optometrist's office and she is independent in her activities of daily living. Although, Dr. Afsar referred the applicant to specialist, Dr. Muhanad Al-Husari, of GSH Medical, for chronic intermittent low back pain, the applicant did not follow through with any treatment after an initial visit on May 23, 2023.

26The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain or psychological impairments to warrant removal from the MIG. The respondent points to the reports of Dr. Hosseini dated January 25, 2019, and Dr. Hanna dated July 21, 2021, which found that the applicant sustained uncomplicated soft tissue injuries with a good prognosis for complete functional recovery within the MIG. The respondent submits that the applicant reports a pre-existing back injury from a prior accident on October 20, 2017, for which she did not seek medical attention and she did not attend her doctor for several months after the subject accident. The respondent further submits the applicant made infrequent visits to her doctor and did not rely on prescription medications in the 5 years following the accident.

27I find that since the applicant returned to work and her activities of daily living, and she is not dependent on medications or regular visits to her doctor, there is insufficient evidence to warrant removal from the MIG based on chronic pain with functional impairment.

The applicant has not established an accident-related psychological impairment for removal from the MIG

28The applicant submits that she should be removed from the MIG based on her psychological impairment. The applicant points to a psychological assessment dated March 6, 2019 conducted by Sathi Kumar Srinivasam, a psychotherapist and his report dated March 12, 2019, which is co-signed by Dr. Gladshteyn. In the psychological report, Dr. Gladshteyn did not review the records of the applicant's doctors. She relied solely on the applicant's self-reported symptoms of sadness, irritability, forgetfulness and self-isolation in diagnosing the applicant with an adjustment disorder. Dr. Gladshteyn also notes that the applicant reported unresolved back injuries from a prior accident in October 2017. Further, Dr. Gladshteyn indicates that the applicant is working as a sales associate.

29The respondent submits that Dr. Gladshteyn did not interview the applicant or review any medical documents in preparing her report. The respondent submits that the applicant did not report any psychological symptoms to Dr. Afsar. The respondent also points to the IE reports of Dr. Rubenstein dated January 25, 2019 and Dr. Bacchiochi dated July 21, 2021 in which the assessors found that the applicant had no diagnosable psychological impairment as a result of the accident. Dr. Bacchiochi indicates the applicant denied any injuries from a prior accident. Dr. Bacchiochi indicates that the applicant is a single mother and she worries about COVID-related issues and the loss of her job.

30I agree with the respondent that there is no indication that Dr. Gladshteyn reviewed any documentation as part of her report and that she relied heavily on the applicant's self-reports. The assessment was also conducted virtually by Sathi Kumar Srinivasam, psychotherapist. As such, Dr. Gladshteyn made a diagnosis of adjustment disorder without the benefit of interviewing the applicant directly or reviewing any documentation. In addition, neither Dr. Rubenstein or Dr. Bacchiochi diagnosed the applicant with an accident-related psychological impairment.

31Overall, I find that the applicant has not met her onus of establishing on a balance of probabilities that she sustained accident-related injuries that warrant removal from the MIG.

The applicant is not entitled to psychological services

32I find that the treatment plan in dispute is not payable.

33The applicant seeks payment for a plan in the amount of $4,512.14 for psychological services at Princeton Hills Medical Assessments Inc.

34Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, and the MIG limits are exhausted, it is not necessary to consider whether the plan is reasonable and necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, interest does not apply.

ORDER

36For the reasons set out above, I find that:

i. The applicant is barred from proceeding with claims for an orthopaedic assessment treatment plan in the amount of $2,520.00; and the physiotherapy services treatment plan in the amount of $1,977.05 pursuant to s.55 (1)1 and s.56 of the Schedule and I decline to exercise discretion under s.7 of the LAT Act;

ii.

iii. The applicant has failed to demonstrate that removal from the MIG is warranted. Therefore, it is not necessary to consider whether the plan for psychological services is reasonable and necessary and interest is not payable, and;

iv. The application is dismissed.