Rajitha Akilan v. Allstate Canada, 2024 CanLII 20679

Citation: Akilan v. Allstate Canada 2024 ONLAT 23-006763/AABS-PI

Licence Appeal Tribunal File Number: 23-006763/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:

Rajitha Akilan

Applicant

and

Allstate Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Tal Eshel, Counsel

For the Respondent: Anthony Naples, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rajitha Akilan, the applicant, was involved in a motor vehicle accident on June 15, 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 certain benefits by the respondent, Allstate Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

a) Is the applicant barred from proceeding to a hearing for all of the benefits claimed in her application because the applicant failed to dispute their denial within the 2-year limitation period?

b) Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the benefits are being claimed more than 260 weeks after the accident?

RESULT

3The applicant is barred from proceeding with her application.

ANALYSIS

Background and Parties’ Positions

4The applicant was involved in an accident on June 15, 2018. On June 12, 2023 the applicant submitted an application to the Tribunal disputing the respondent’s denial of various treatment plans.

5The respondent submits that the treatment plans in dispute were denied in 2018 and 2019, and as such, the applicant has submitted her application well beyond the two-year limitation period specified in s. 56 of the Schedule. It further argues that there are no reasonable grounds for an extension under s. 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) and that the application should be dismissed.

6The applicant submits that she should be able to proceed to the substantive hearing. She argues that s. 56 is not engaged, as the respondent’s denials are non-compliant with the Schedule for failing to provide valid medical reasons.

Law

7Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.

8In order for section 56 to be triggered, the respondent must have provided a valid notice of denial in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”) at paragraph 14. According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.

9Further, pursuant to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, the notice must provide a valid medical and any other reason for the denial. As stated by Executive Chair Lamoureux in T.F., at paragraph 19:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

10If the respondent’s denial satisfies these requirements, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the LAT Act. Section 7 allows the Tribunal to extend a limitation period for filing an appeal. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492, to determine if the justice of the case requires the extension:

a) The existence of a bona fide intention to appeal within the limitation period;

b) The length of delay;

c) Prejudice to the other party; and

d) Merits of the appeal.

The respondent’s denial notices are compliant with the Schedule

OCF-18 submitted September 25, 2019 for a psychological assessment

11I find that the Explanation of Benefits (“EOB”) dated October 4, 2018 is valid. Although the applicant submits that no medical reason was provided and that the language is vague, I disagree. The respondent has identified the applicant’s medical condition. The EOB specifically references the fact that the respondent has not received compelling medical information to indicate that the applicant suffers from psychological injuries. The respondent has further specified the information it does not have but requires, namely, the clinical notes and records of the applicant’s family physician from two years prior to the date of loss to present.

12The applicant references the underlying OCF-18 for a psychological assessment, including the summary of the pre-screening interview. She submits that in its EOB, the respondent failed to properly consider the available evidence in making its determination. However, although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render a notice invalid. In this case, the language was clear and straightforward and was sufficient to permit the applicant to make an informed decision to as to whether accept or refuse the denial. I find that this was a clear and unequivocal denial.

OCF-18 submitted January 11, 2019 for physiotherapy services

13I find that the EOB dated February 22, 2019 was a valid denial. The EOB referenced and enclosed the s. 44 report of Dr. Ramunas Saplys, orthopaedic surgeon. The correspondence further states that based on the IE report and medical file, the respondent determined that the applicant’s injuries are minor in nature and within the MIG and that the proposed treatment plan is not reasonable and necessary.

14The applicant disputes the statement in the EOB that she presented no compelling medical evidence of a pre-existing condition, arguing that the medical record establishes that she suffered from pre-existing tendinitis. However, as previously noted, the applicant may disagree with the respondent’s assessment of medical documentation, but it does not render a notice invalid.

15The applicant further argues that the EOB was provided outside of the 10 business day limit prescribed by s. 38 of the Schedule. I am not persuaded by the applicant’s argument. The correspondence dated February 22, 2019, was the second EOB provided with respect to the treatment plan. The original EOB dated January 24, 2019 was provided within 10 business days of the submission of the OCF-18 on January 11, 2019.

OCF-18 submitted May 23, 2019 for chronic pain assessment

16I agree with the respondent that the EOB dated June 6, 2019 provided sufficient reasons for the denial. It referenced the treatment plan for the chronic pain assessment, and specifically referenced the applicant’s medical conditions of whiplash associated disorder, complaints of neck pain, muscle strains and sprains, finding that the listed medical evidence did not establish that a chronic pain assessment was reasonable and necessary.

17I find that this was a clear and unequivocal denial. The respondent has identified the applicant’s medical conditions. The applicant was provided with information regarding her right to appeal the decision. In my view, the reasons were clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

18The applicant further raises the argument that the June 6, 2019 EOB was provided outside of the 10 business day timeline prescribed in s. 38(8). I agree with the applicant that it appears that the EOB was provided one day outside of the 10 business day limit, as the OCF-18 was submitted on May 23, 2019. However, from my review of s. 56, there is nothing in this section or the Schedule which provides or implies that the two-year limitation period commences only if the insurer has provided a refusal of benefits within the ten business days provided for in s. 38(8) of the Schedule.

19Rather, the consequence for an insurer breaching the 10 business day deadline stipulated in s. 38(8) is outlined in s. 38(11)2. It entitles the applicant to the goods and services consumed starting on the 11th business day and ending on the day in which notice is provided. The respondent denied the OCF-18 on June 6, 2019. As such, I agree with the respondent that the two-year limitation period specified in s. 56 of the Schedule commenced on that date. It is clear that the applicant was well-outside the two year limitation period for all of the treatment plans in dispute.

20However, I must still consider whether an extension of the limitation period should be granted.

Section 7 of the LAT Act

21I find that the applicant has not provided sufficient evidence that the limitation period should be extended under s. 7.

22The applicant has provided limited submissions as to why an extension should be granted. While she lists the four Manuel factors, no specific arguments have been provided as to how these factors have been met.

23I agree with the respondent that the applicant has not led evidence of a bona fide intention to appeal within the appeal period. Further, the applicant’s delay in disputing the denials of more than one to two years is significant, and I note the respondent’s submissions that it has suffered prejudice being denied the opportunity to conduct assessments and obtain medical evidence during this period. Although the applicant has led some evidence on the merits of her claim, given the lack of submissions on the remaining three Manuel factors, I find that the applicant has not demonstrated that an extension of the limitation period is justified.

CONCLUSION AND ORDER

24I find that the applicant is statute-barred from proceeding with her application pursuant to s. 56 of the Schedule.

25The application is dismissed and the substantive hearing is vacated.