Licence Appeal Tribunal File Number: 23-000148/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:
Anna Turcan
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Arvin Gupta, Counsel
For the Respondent:
Hermina Nuric, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Anna Turcan, the applicant, was involved in an automobile accident on October 18, 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, Definity Insurance Company (formerly known as Economical Insurance Company), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the case conference the respondent raised a preliminary issue to be heard at this hearing, prior to the substantive issues in dispute.
PRELIMINARY ISSUE
3The preliminary issue to be decided is:
i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit an application for benefits (OCF-1) within the time prescribed in the Schedule?
SUBSTANTIVE ISSUES
4The substantive 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 limit (“MIG”)?
ii. Is the applicant entitled to $5,420.00 for chiropractic services, proposed by Reddy’s Physio Rehab Inc., in a treatment plan dated April 8, 2021?
iii. Is the applicant entitled to $2,810.00 for chiropractic services, proposed by Reddy’s Physio Rehab Inc., in a treatment plan dated November 11, 2021?
iv. Is the applicant entitled to $2,549.00 for chiropractic services, proposed by Reddy’s Physio Rehab Inc., in a treatment plan dated May 19, 2022?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Reddy’s Physio Rehab Inc., in a treatment plan dated January 27, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5On the preliminary issue, I find that the applicant is not statute-barred from proceeding with the substantive issues in dispute pursuant to s. 55(1).
6On the substantive issues, I find that:
i. The applicant has not established accident-related impairments that warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plans in dispute or interest.
ANALYSIS
PRELIMINARY ISSUE
Background
7The applicant was involved in an accident on October 18, 2020. She contacted the respondent on October 21, 2020, and received an Application for Accident Benefits (“OCF-1”) the following day. The applicant did not submit a completed OCF-1 at that time, but proceeded to attend physiotherapy treatment. The respondent approved treatment up to the Minor Injury Guideline limit. However, from April 21, 2021 onwards the respondent began to deny the submitted treatment plans (“OCF-18s”).
8In a letter dated April 21, 2021 the respondent made a s. 33 request for a number of documents, including the OCF-1. The respondent noted that the applicant’s OCF-1 was overdue and that it was required, in order to be considered for any further treatment or payment. On June 14, 2022 the respondent sent the applicant an email and letter stating that no further accident benefits were payable, as the respondent had not received the completed OCF-1.
9The parties disagree as to when the completed OCF-1 was provided by the applicant. The applicant submits that she sent the respondent’s adjuster the completed OCF-1 on July 13, 2022, less than a month after the June 14, 2022 letter. The respondent submits that it did not receive the OCF-1 until September 22, 2023.
Law
10Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
11Once 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, if applicable (s. 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 forms.
12Section 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 onus is on the applicant to establish a reasonable explanation for the delay.
Did the respondent comply with its obligations under s. 32(2) of the Schedule?
13In order to find that the applicant was non-compliant with s. 32(5) of the Schedule, I must first determine whether the respondent was compliant with its obligations under s. 32(2). The 30 day deadline to return a completed OCF-1 would only be engaged if the respondent had provided the requisite information under s. 32(2).
14As previously noted, s. 32(2) has four conditions that an insurer must satisfy when responding to notice of an accident. I find that the first time the respondent provided such a notice complying with s. 32(2) was on June 14, 2022.
15Under s. 32(2), an insurer must provide a claimant with information to assist the person in applying for benefits. In my view, this includes telling the claimant what the consequences would be for non-compliance, such as barring the applicant from claiming benefits if the OCF-1 is not returned.
16In the respondent’s October 28, 2020 email, the applicant was advised that she could start treatment immediately, but that the respondent required the OCF-1 to pay for incurred treatment. However no further consequences for failure to submit the form, such as being barred from claiming further benefits, were stated. In the respondent’s correspondence from November 2020 to March 2021 approving the treatment plans, there was no further reference to the required OCF-1 at all. Although in the April 21, 2021 letter the respondent raised the fact that the OCF-1 was overdue, it requested the completion of the OCF-1, along with other documents, pursuant to s. 33 of the Schedule. The respondent further referenced s. 33(8), stating that if the applicant subsequently provided the documents, payments would be resumed. However, the applicant was not informed that the failure to provide a completed OCF-1 within the timeline would bar her from claiming benefits.
17I find that the first correspondence to the applicant that was compliant with s. 32(2) was on June 14, 2022. In an email and letter of the same date, the respondent clearly stated that it had not received a completed OCF-1, that the timeline to provide it had passed, that no further accident benefits are payable and that it would be unable to consider any further treatment plans until an OCF-1 was received. As such, the applicant was clearly informed of the consequences of non-compliance.
Did the applicant comply with s. 32(5) of the Schedule or provide a reasonable explanation for the delay?
18I find that even if the applicant did not provide her completed OCF-1 within 30 days as required by s. 32(5), she has provided a reasonable explanation for the delay pursuant to s. 34 of the Schedule.
19The parties disagree as to the date the applicant provided her completed OCF-1. The applicant submits that upon receiving the email and letter from the respondent on June 14, 2022, she emailed her application to the adjuster on July 13, 2022.
20The respondent argues that it did not receive the OCF-1 until it was forwarded by the applicant’s counsel on September 22, 2023. It submits that although the applicant states that the OCF-1 was emailed July 13, 2022, it has no record of it being provided. This is because the email address the applicant purportedly sent it to, was the wrong email address. It cites s. 64(21) of the Schedule and the Tribunal decision T.A.K. v. Aviva General Insurance Company, 2021 CanLII 33692 (ONLAT) to argue that anything not delivered to the address designated by the insurer shall not be considered to have been delivered to the insurer.
21Section 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 onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
b. The onus is on the insured person to establish a “reasonable explanation.”
c. Ignorance of the law alone is not a “reasonable explanation”.
d. 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.
e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
22I find that even if the respondent’s argument that it did not receive the OCF-1 until September 2023 is accepted, the applicant has provided a reasonable explanation for the delay. As previously noted, I found that the letter sent by the respondent on June 14, 2022 complied with s. 32(2). As such, the applicant had 30 days to submit a completed OCF-1. The parties have submitted a copy of an email dated July 13, 2022 from the applicant to the email address Jeanne.david@economical.com. The applicant submits that she was under the impression that emailing the OCF-1 to this email address was satisfactory delivery. This was reiterated by her counsel’s letter dated September 22, 2023. I note that Ms. David appears to have been the adjuster at the relevant time, and it was Ms. David that had sent the June 14, 2022 email and letter to the applicant requesting the OCF-1.
23The respondent points to the fact that at the bottom of the June 14, 2022 email, it states in red ink that all claim forms should be forwarded to EconomicalABclaims@economical.com. However, I note that the respondent’s letter of the same date, also sent from Ms. David, states that the applicant is free to contact Ms. David at the included phone number and at the email address Jeanne.david@economical.com to discuss the correspondence of “any aspect of your claim”.
24As such, I find the applicant’s reason for the delay, that she thought she had satisfactorily submitted her OCF-1 form, to be credible and worthy of belief. The applicant appears to have sent her OCF-1 to the adjuster she was corresponding with at the time. The email address was the one that the adjuster had provided for questions with respect to the applicant’s claim. Even if it this was not the email address specified in the June 14, 2022 email, I find it reasonable that the applicant thought she had successfully submitted an application. Her counsel’s letter dated September 22, 2023 also stated that the applicant had emailed the completed OCF-1 in response to the adjuster’s email. The respondent argues that it did not receive the OCF-1 on this date and that it cannot verify whether it was received as the adjuster no longer works there and her email portal is no longer active. In my view, this does not negate the fact that the applicant reasonably believed that she had submitted the application on July 13, 2022.
25Having found that the applicant has provided a reasonable explanation in accordance with s. 34 of the Schedule for any delay in submitting her OCF-1, I find that the applicant may proceed with the substantive issues in dispute.
SUBSTANTIVE ISSUES - MINOR INJURY GUIDELINE
26Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”
27An insured person 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 injury or 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.
The applicant did not sustain injuries that warrant removal from the MIG
28The applicant submits that she suffers from a degenerative condition in the cervical and lumbar spine and as a result, should be removed from the MIG. She relies on the clinical notes and records (“CNRs”) of Dr. Basile, neurologist and an MRI conducted on June 23, 2021 which revealed that she had mild degenerative changes in the cervical and lumbar spine causing multilevel mild neural foraminal narrowing and an annular tear in her L5-S1. The applicant argues that the MRI evidence of a degenerative condition is compelling evidence to warrant removal from the MIG.
29The respondent disputes that the applicant’s impairments warrant removal from the MIG. It submits that while the diagnostic imaging reveals mild degenerative disc disease in the lumbar spine, the applicant has not established that this was causally related to the accident. Rather, the family doctor’s records questioned whether the applicant’s history of horseback riding played a role in her continuing back pain. Further, while needle EMG studies found the possibility of L5 lumbosacral radiculopathy, the respondent argues that the June 23, 2021 MRI ruled out any suspected radiculopathy. Finally, the respondent submits that the applicant has failed to produce any pre-accident medical records to establish a pre-existing condition which could have caused her symptoms to worsen or to prevent recovery within the MIG.
30I find that the applicant has not met her burden to prove, on a balance of probabilities, that she sustained non-minor impairments as a result of the accident.
31With respect to the diagnostic imaging, I agree with the respondent that any suspected radiculopathy was subsequently ruled out by Dr. Basile. Further, although the applicant references the June 23, 2021 MRI which revealed mild degenerative changes in the cervical and lumbar spine causing multilevel mild neural foraminal narrowing and an small annular tear in her L5-S1, the applicant does not direct me to any medical opinion establishing that these degenerative changes were caused by the accident. Rather, the MRI report states, “no definite cause for symptoms identified.”
32Outside of the diagnostic imaging and the CNRs of Dr. Basile, the applicant does not direct me to any other evidence or provide additional submissions in support of a removal from the MIG. Further, even if the mild degenerative changes revealed in the MRI pre-dated the accident, the applicant has not provided any submissions or pre-accident CNRs to establish that this pre-existing condition precludes recovery if she were held within the monetary limits of the MIG.
33As such I find that the applicant has not satisfied her onus to prove, on a balance of probabilities, that her injuries warrant removal from the MIG.
34As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
ORDER
36On the preliminary issue I find that the applicant is not statute-barred from proceeding with the substantive issues in dispute pursuant to s. 55(1).
37On the substantive issues I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the disputed treatment plans nor interest.
38The application is dismissed.
Released: December 23, 2024
Ulana Pahuta
Adjudicator