Citation: Marshall v. Economical Insurance, 2024 ONLAT 22-012751/AABS

Licence Appeal Tribunal File Number: 22-012751/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:

Andrew Marshall

Applicant

And

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

George Campbell, Paralegal

For the Respondent:

Joshua Edmunds, Counsel

HEARD:

By Way of Written Submissions

1Andrew Marshall, the applicant, was involved in an automobile accident on May 22, 2020, 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, Economical Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

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

i. Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?

3Substantive Issues: If the answer to the above question is no, the issues to be decided in the hearing 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 limit (“MIG”)? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.

ii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from July 28, 2021 to date and ongoing?

iii. Is the applicant entitled to the treatment plans/OCF-18 (“plan”) proposed by HealthMax Physio as follows:

i. $2,200.00 for chiropractic services dated July 28, 2021; and

ii. $1,302.49 for chiropractic services dated October 6, 2021?

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

RESULT

4After considering the parties submissions and all of the evidence I find:

i. The applicant is not barred from proceeding to a hearing for failing to notify the respondent of the circumstance giving rise to a claim for benefits within the prescribed timeline provided for under s.32 the Schedule.

ii. The applicant’s injuries are predominantly minor and are therefore subject to treatment within the MIG limit.

iii. The applicant is not entitled to a NEB in the amount of $185.00 per week for the time period claimed.

iv. The applicant is entitled to the OCF-18 in the amount of $2,200.00 for chiropractic treatment dated July 28, 2021, proposed by HealthMax Physio., plus interest pursuant to s. 51 of the Schedule.

v. The applicant is not entitled to the OCF-18 in the amount of $1,302.49 for chiropractic treatment dated October 6, 2021, proposed by HealthMax Physio.

ANALYSIS

The applicant is not barred from proceeding to a hearing for failing to notify the respondent of the circumstance giving rise to a claim for benefits within the prescribed timeline provided for under the Schedule.

5Section 32(1) of Schedule supports that a person who intends to apply for accident benefits shall notify the insurer of his or her intention no later than the seventh day (“7 days”) after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. Once an insurer receives notice of an applicant’s intention to apply for benefits it must provide the applicant with an application for accident benefits (“OCF-1”), along with a written explanation of the benefits available, and information to assist the person in applying for benefits such as an election form for specified benefits pursuant to s. 32(2) of the Schedule.

6Section 32(5) of the Schedule supports that an applicant shall submit a completed and signed application for benefits within 30 days after receiving the application forms.

7Section 34 of the Schedule supports that a person’s failure to comply with a time limit does not disentitle the person to a benefit if the person has a reasonable explanation. The Tribunal has consistently applied the following criteria in determining whether a person has a reasonable explanation for the delay:

An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
The onus is on the insured person to establish a “reasonable explanation.”
Ignorance of the law alone is not a “reasonable explanation.”
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.
The lack of prejudice to the insurer does not make an explanation automatically reasonable.
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.

8Section 55(1) of the Schedule supports that an insured person shall not apply to the Licence Appeal Tribunal if the insured person has not notified the insurer of the circumstances giving rise to a claim for accident benefits or has not submitted an OCF-1 within the times prescribed by this Regulation.

The Parties’ Positions

9The respondent argues that the applicant has failed to comply with s. 32 of the Schedule because he did not notify the insurer of his intention to apply for accident benefits within 7 days and has not provided a “reasonable explanation” for why pursuant to s. 34 of the Schedule. The respondent relies on a clinical note and record (“CNR”) from the applicant’s family doctor and a transcript from an Examination Under Oath (“EUO”) where the applicant provided no explanation for the delay in submitting an OCF-1 within the timeline required.

10The applicant acknowledges that he did not submit the OCF-1 and disability certificate (“OCF-3”) until July 30, 2021, which was over one-year post-accident. However, he submits that he did report the accident to the respondent, but it did not provide him with an OCF-1 or accident benefits (“AB”) package pursuant to s. 32(2) of the Schedule. Further, he was still receiving treatment from a prior accident (which occurred on October 19, 2019), and the respondent led him to believe that it was interested in discussing resolution of both claims on the anniversary of this accident because it had not yet been a year. In support of his position that he reported the accident, the applicant relies on a self-reporting collision report and injury of occupants’ form from the date of loss, and an email between his legal representative and the adjuster from November 2020. The applicant submits that he does not need to provide a reasonable explanation for the delay because he reported the accident to the respondent.

Delay in Notifying Respondent

11I find the respondent has not met its onus in proving that the applicant is barred from proceeding to a hearing disputing his entitlement to accident benefits for the following reasons.

12The applicant submits that he reported the accident to the respondent on the day of the accident because he reported it to a collision reporting centre, which attached a form noting injuries. He also asserts that he called and reported the accident on the same day. Further, he submits that he is prejudiced because the respondent did not comply with the Tribunal’s case conference report and order (“order”) and provide him with a copy of the adjuster’s log notes. Consequently, he has not been provided with information which would prove when the respondent became aware of the accident and that he sustained injuries.

13The applicant relies on the Tribunal’s decision in Katsiashvili v Economical Mutual Insurance, 2023 CanLII 1485 (ON LAT), where the adjudicator found that the applicant was prejudiced because of the insurer’s failure to produce its adjuster’s log notes. The adjudicator concluded that she did not have a full chronology of events and, as a result, the insurer did not meet its onus in proving that the applicant did not comply with s. 32(1) of the Schedule. I agree with the adjudicator’s rationale in this decision and find that the applicant is entitled to information about how his claim was handled and transparency in the process. Especially when the respondent is trying to bar his claim for non-compliance with the Schedule. The respondent asserts that it provided its “available log notes” to the applicant on September 11, 2023. However, it did not provide any proof of same. Further, I am not convinced that the respondent produced all of its log notes for this hearing.

14I find that I am unable to make a determination about the facts in this case because the respondent did not comply with the Tribunal’s order and provide the applicant with a complete copy of its adjuster’s log notes. Nor am I satisfied that the respondent submitted all of its log notes from the inception of the claim as evidence for this hearing because the date of the first log note is from July 2021.

15I find that an email from the adjuster to the applicant’s legal representative on November 23, 2020, supports that the respondent was aware of the accident and that the applicant sustained injuries prior to July 2021. In that email, the adjuster advises that he is not in a position to settle the October 2019 claim and that the applicant has a second claim from May 22, 2020, and referenced a claim number. The adjuster then indicated that they would like to settle both claims once the one-year mark for the second accident had passed. I find this email contradicts the respondent’s position that it was not aware of the applicant’s accident until July 2021. The respondent did not address this email at all in its submissions.

16In my view, if a claim number had been assigned and there had been discussions with the applicant there would be a log note to that effect in November 2020, or a note of when the respondent assigned a claim number to the file. Consequently, I find it likely that log notes are missing which pre-date July 2021, and that I have not been provided with a full picture of when the respondent became aware of the accident and that the applicant sustained impairments. I also find that if a claim number had been assigned, the respondent would have sent the applicant an AB package along with the forms required. I have no evidence before me to support that it did.

17The respondent relies on transcripts from an EUO where the applicant was asked if he had an explanation for the delay in submitting an application for accident benefits and he said “no.” In addition, he was also asked whether he submitted the OCF-1, after his first claim had been resolved with the respondent, and he confirmed “yes”. Although I agree with the respondent that this is not a reasonable explanation for the delay, I have been given reason to doubt the respondent’s position that it was not notified of the accident until July 2021. Further, I do not have any evidence before me that the respondent complied with its obligation and sent the applicant an OCF-1 and AB package. I agree that ignorance of the law does not excuse non-compliance with the timelines outlined in the Schedule. However, I find that the applicant was led by the respondent to believe, in November 2020, that it was interested in settling his claim regarding this accident at the one-year mark. Instead, it denied his claim in its entirety for non-compliance with the Schedule. I find that the respondent misled the applicant about its intentions regarding his second accident and did not comply with its own procedural obligations under the Schedule.

18For all of the above-reasons, I find that the applicant is not barred from proceeding to a hearing for failing to notify the respondent of the circumstance giving rise to a claim for benefits within the prescribed timeline provided for under the Schedule. I will now address the substantive issues in dispute.

The applicant’s impairments fit within the MIG

19Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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 person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.

21The applicant argues that his impairments do not fit within the MIG because he had pre-existing physical and psychological impairments arising from a prior accident on October 19, 2019. He relies on the above-noted OCF-3, and the CNRs of his family doctor.

22The respondent argues that the applicant’s accident-related impairments fall within the MIG. It submits that the applicant has not met his onus in providing compelling medical evidence to support that any pre-existing medical condition would prevent him from achieving maximum medical recovery within the MIG. It submits that the CNRs of his family doctor support that he sustained a minor injury. I agree.

Pre-existing Condition

23The applicant has not provided compelling medical evidence of a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG.

24The applicant submits that at the time of the subject accident he had still not recovered from his physical and psychological impairments from the October 19, 2019 accident. It is well established that submissions are not evidence. I find the applicant has not provided compelling evidence from a treating practitioner to support that he had a pre-existing condition that would prevent him from achieving maximum medical recovery in the MIG. This is the test that must be met in order to be removed from the MIG as a result of a pre-existing condition.

Applicant’s Impairments fit within the MIG

25An OCF-3 dated July 28, 2021, completed by Dr. Hashi, chiropractor, supports that the applicant sustained sprain and strain of the lumbar spine, sprain and strain of sacroiliac joint, multiple injuries to the neck; chronic post-traumatic headaches, and psychological and behavioural issues classified elsewhere. I find the physical impairments listed on the OCF-3 fit within the MIG. Further, I give Dr. Hashi’s reference to psychological and behavioural issues little weight because it is not a psychological diagnosis. Nor is it within a chiropractor’s scope of practice to diagnose. Further, other than the OCF-3 there is no other medical evidence of any accident-related psychological impairment before me.

26I find the CNRs of the applicant’s family doctor support he sustained a minor injury as they demonstrate that the applicant has attended twice following the accident. A visit done by telephone on May 28, 2020, notes that the applicant reported right sciatic pain. He saw the doctor one-week later where he reported low back pain. The doctor notes that “there were no fractures or any permanent disability. He has been going for rehab and physiotherapy for low back pain... He has been working in landscaping which is difficult with back pain.” The doctor’s examination revealed some tenderness in the low back - otherwise it was a normal examination. I find that these CNRs support that the applicant sustained a minor injury.

27For the above reasons, the applicant has not met his onus in proving on a balance of probabilities that his accident-related injuries fall outside of the MIG. The applicant also submits that he is entitled to payment of the OCF-18s in dispute because the respondent did not comply with its procedural obligations pursuant to s.38(8) of the Schedule which I will address now.

The applicant is entitled to the OCF-18 in the amount of $2,200.00 for chiropractic treatment.

Non-Compliance with s. 38 (8) of the Schedule

28Section 38(8) of the Schedule sets out that within 10 business days of receipt of a treatment plan, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and any other reasons why it considers the goods and services to be not reasonable and necessary. In addition, if an insurer believes that the MIG applies it shall indicate so in its denial pursuant to s.38(9). The consequence of an insurer’s failure to comply with s. 38(8) and (9) is that the benefits are payable as set out in s.38(11). If an insurer fails to advise that it believes that the MIG applies, then an insurer must pay the benefit.

29The applicant submits that the respondent failed to comply with s. 38(8) of the Schedule in its denial of both the OCF-23 and OCF-18 in dispute. In particular, it failed to provide a medical reason and/or advise him that his accident-related impairments fit within the MIG. The applicant argues that because of the respondent’s non-compliance with s. 38(8) and (9) of the Schedule it must pay for both the OCF-23 and OCF-18 for chiropractic treatment.

30The respondent argues that its notices did comply with s. 38(8) of the Schedule.

31On July 28, 2021, the applicant submitted the OCF-23 for chiropractic treatment in the amount of $2,200.00, completed by Dr. Hashi, seeking treatment within the MIG. In response, the respondent sent the applicant an explanation of benefits (“EOB”) dated August 11, 2021, advising that it was denying the benefit because it was not reasonable and necessary. It stated that it did not have any medical documentation to support any accident-related impairment and requested a reasonable explanation for why it took 14 months for the applicant to report his injuries, it requested that the applicant attend an EUO, and requested various medical records and documents from the applicant to support his claim. In a subsequent letter of the same date, the respondent advised the applicant that because of the delay in submitting the OCF-1, s. 32(10) allows it to delay determining whether an applicant is entitled to a benefit for 45 days after an insurer receives the completed application to investigate the claim; or 10 business days after the applicant complies with a s. 33 request.

32I find the respondent’s EOB denying the OCF-23 sufficient because the applicant was seeking treatment within the MIG. As a result, it was unnecessary for the respondent to advise him that his impairments fit within the MIG. However, I find that the applicant is entitled to the OCF-23 in the amount of $2,200.00, for chiropractic treatment once/if incurred because his impairments fit within the MIG, and he is entitled to treatment up to the $3,500.00 limit.

The applicant is not entitled to the OCF-18 in the amount of $1,302.49 for chiropractic treatment.

33On October 15, 2021, the respondent sent the applicant a letter advising that it was denying his claim for accident benefits in accordance with s. 32 of the Schedule because he did not provide a reasonable explanation for the delay in submitting the OCF-1 because he confirmed during his EUO that he purposely waited until after he settled his first claim to submit it. The respondent also advised that the applicant did not fully comply with its s. 33 request and consequently is not liable to pay a benefit in any period of non-compliance.

34On October 21, 2021, the applicant submitted an OCF-18, in the amount of $1,302.94 seeking chiropractic treatment outside of the MIG. On the same date, the respondent sent the applicant an EUO advising that it had received the OCF-18, that it was not reasonable and necessary, and it referred to its letter of October 15, 2021, denying the applicant’s claim.

35Although I have determined that the applicant is not barred from proceeding with his claim, based on the facts before me, I find that the respondent had reason to doubt the merits of the applicant’s claim for accident benefits because of the lengthy delay in submitting the OCF-1 and any medical records supporting that he sustained any injuries. Consequently, I find the respondent’s EOB dated October 15, 2021, provided sufficient reasons for why it was denying the applicant’s claim because I agree that waiting until after the first claim had settled to submit the OCF-1 was not a reasonable explanation for the delay. Consequently, I find that s. 38(8) of the Schedule does not apply because the respondent had denied the claim pursuant to s.32 of the Schedule.

36Further, I find the applicant is not entitled to the OCF-18 for chiropractic treatment because unlike the OCF-23, it proposed treatment outside of the MIG. Therefore, I find the applicant is not entitled to the OCF-18 for chiropractic treatment in the amount of $1,302.49.

The applicant is not entitled to payment of a NEB in the amount of $185.00 per week for the time-period claimed.

37Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (CanLll) (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.

38Section 36(4) of the Schedule provides that within 10 business days after the insurer receives an application and completed OCF-3, the insurer shall either a) pay the benefit, or b) give notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit, and if the insurer requires an examination under s.44 relating to the specified benefit, advising the applicant of the requirement for an examination.

Non-compliance with s. 36(4) of the Schedule

39The applicant argues the respondent did not comply with s.36(4) of the Schedule in responding to the OCF-3 because it did not arrange an insurer examination (IE) and its correspondence denying the benefit did not provide a medical reason or address the complete inability test. The applicant relies on the Tribunal’s decision in S.V. v. Aviva Insurance Canada (“S.V.”), 2020 CanLII 40332 (ON LAT) where the adjudicator determined that the insurer was liable to pay for the specified benefit because it did not fulfill their procedural obligations pursuant to s. 36(4) of the Schedule.

40The respondent submits that its EOB dated August 11, 2021, denying the benefit was clear and unequivocal. The respondent received the OCF-3 on August 3, 2021. On August 11, 2021, it sent the applicant an EOB acknowledging receipt of the OCF-3. The respondent advised the applicant that because he did not submit an OCF-1 within 7 days, s. 32(10) allows it to delay determining if he is entitled to a benefit and may delay paying a benefit for 45 days after the insurer receives the completed application; or 10 business days after the applicant complies with a s. 33 request. The applicant attended the EUO on September 30, 2021. On October 15, 2021, the respondent sent the applicant a EOB denying the applicant’s claim for accident benefits pursuant to s. 32 of the Schedule.

41I find the respondent complied with s. 36(4)(a) of the Schedule because it responded to the OCF-3 within 10 days in its EOB dated August 11, 2021. Further, the respondent notified the applicant that it was investigating his claim, requested an EUO and that he submit various records pursuant to s. 33. Further, following the EUO it sent the applicant an EOB dated October 15, 2021, denying the applicant’s claim for accident benefits in its entirety and providing the medical and/other reasons for why. Specifically, it determined that the applicant’s reason for the delay (following settlement of his first claim) was not a reasonable explanation for submitting the OCF-1. Further, it took the position that his claim was barred pursuant to s. 32. Based on the facts of this case, I find the respondent’s notice denying the benefit sufficient.

42I find the S.V. decision distinguishable from the present case because the insured was not delayed by 14 months in applying for accident benefits, there was a 7- month delay in the insurer’s response to the OCF-3 and the adjudicator determined no medical reason was provided. In this case, the respondent denied the claim pursuant to s.32. As highlighted above, despite the fact that I have determined that the applicant was not barred from proceeding to a hearing I do not find it unreasonable that the respondent took this position because of the applicant’s lengthy delay in submitting an OCF-1.

Entitlement to NEB

43The applicant argues that he sustained various impairments as a result of the accident which have resulted in a complete inability to carry on a normal life. He relies on the above-noted OCF-3 prepared by Dr. Hashi and CNRs of his family doctor. The applicant argues that he testified at the EUO that he was unable to engage in activities which he would normally do post-accident and as time progressed, he deteriorated and became more depressed.

44The respondent submits that the applicant has not met his onus in proving that he meets the stringent test for NEBs. It asserts that the medical records relied upon by the applicant do not support that he suffers from any ongoing disability which would meet the test for NEBs.

45I find that the applicant has not established that he is entitled to a NEB for the following reasons.

46First, I find the wording in s. 12(1)1 of the Schedule clear that in order to qualify for payment of a NEB an insured must suffer a complete inability to carry on a normal life within the first 104-week period post-accident. I find the applicant’s submissions did not address what his pre-accident activities were and what activities he could no longer do post-accident. He submits that he was unable to engage in activities which he would normally do and as time progressed, he deteriorated and became more depressed. I find that this does not meet test set out in Heath test.

47Second, I find the medical evidence has failed to establish that the applicant has any ongoing impairment as a result of the accident which would result in a complete inability to carry on a normal life during the time period claimed. For example, the applicant’s submissions or testimony at the EUO that he became more depressed post-accident was not supported by any medical evidence. Further, the applicant refers to a letter from his family doctor to his employer dated October 16, 2020, requesting that the applicant return to his work as a landscaper on modified duties because of back pain. A subsequent letter from his employer states that modified duties were not available. While this correspondence may support that the applicant’s family doctor supported that the applicant return to work on modified duties it does not support that he meets the complete inability test.

48Finally, the applicant’s submissions were wholly insufficient in addressing the test outlined in Heath. As a result, I find the applicant has not met his onus in proving on a balance of probabilities that he suffers a complete inability to carry on a normal life within 104 weeks of the accident. Therefore, I find he is not entitled to payment of a NEB for the time period claimed.

The applicant is entitled to payment of interest on the OCF-23 for chiropractic treatment.

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-23 for chiropractic treatment in the amount of $2,200.00.

ORDER

50For the above-noted reasons, I order as follows:

ii. The applicant’s injuries are predominantly and are therefore subject to treatment within the MIG limit.