Gayle-Shepherd v. Certas Home and Auto Insurance Company, 2024 CanLII 20681

Citation: Gayle-Shepherd v. Certas Home and Auto Insurance Company, 2024 ONLAT 22-002628/AABS

Licence Appeal Tribunal File Number: 22-002628/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:

Chanel Gayle-Shepherd

Applicant

and

Certas Home and Auto Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Esan Ince-Mercer, Counsel

For the Respondent: Thulasi Kandiah, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chanel Gayle-Shepherd, the applicant, was involved in an automobile accident on July 8, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues to be decided in the hearing are:

Preliminary Issues:

1. Is the applicant barred from proceeding with her application disputing the respondent’s denial of her income replacement benefits (“IRBs”) and treatment plans (“OCF-18s”) for chiropractic treatment (issues 4 and 5 below) because she failed to dispute the respondent’s denial of the benefits within the two-year limitation period pursuant to section 56 of the Schedule?

Substantive issues:

1. 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?
2. Is the applicant entitled to an income replacement benefit in the amount of $262.50 per week from March 13, 2019, to ongoing?
3. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by Mackenzie Medical Centre in an OCF-18 dated October 9, 2020?
4. Is the applicant entitled to $1,384.70 for chiropractic services, proposed by Mackenzie Medical Centre in an OCF-18 dated August 22, 2019?
5. Is the applicant entitled to $1,977.05 for chiropractic services, proposed by Mackenzie Medical Centre in an OCF-18 dated June 28, 2019?
6. Is the applicant entitled to $3,696.50 for chiropractic services, proposed by Mackenzie Medical Centre in an OCF-18 dated March 5, 2019?
7. Is the applicant entitled to $200.00 for other goods and services, proposed by Mackenzie Rehabilitation Centre dated October 9, 2020?
8. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Marigold Medical Assessment Centre in an OCF-18 dated December 23, 2021?
9. Is the applicant entitled to $3,134.43 for damaged clothing, etc. submitted in an expense claim (“OCF-6”) dated March 13, 2019, and denied on May 30, 2019?
10. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is barred from proceeding with her claim disputing the respondent’s denial of her IRB because she did not dispute the respondent’s denial within the two-year limitation period pursuant to section 56 of the Schedule. The applicant is not barred from disputing the respondent’s denial of the two OCF-18s for chiropractic treatment. The applicant has not established that her impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the disputed benefits. OCF-18s in dispute. Further, the applicant is not entitled to payment of the disability certificate (“OCF-3”) in the amount of $200.00 proposed by Mackenzie Rehabilitation Centre, or $3,134.43 for expenses claimed in the OCF-6 dated March 13, 2019.

ANALYSIS

The applicant is barred from proceeding with her claim disputing the respondent’s denial of her IRBs pursuant to section 56 of the Schedule.

4Section 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.

5The guiding principles for assessing the sufficiency of notice were set out in the court’s decision in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). Pursuant to Smith, the refusal to pay a 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.

6The respondent submits that the applicant failed to bring her application within the two-year limitation period stipulated in s. 56 of the Schedule in relation to the respondent’s denial of her entitlement to the IRBs and two OCF-18s for chiropractic treatment. It argues that it provided a clear and unequivocal denials of these benefits and that the Tribunal should not exercise its discretion to extend the limitation period, pursuant to s. 7 of the LAT Act.

7The applicant did not address the preliminary issues raised by the respondent at all in her submissions. Nor did she make any arguments requesting that the Tribunal exercise its discretion and extend the limitation period pursuant to s. 7 of the LAT Act. Despite having the opportunity to file reply submissions addressing the respondent’s arguments, the applicant chose not to.

The respondent’s notices denying the applicant’s entitlement to the IRB were valid.

8The applicant submitted a disability certificate (“OCF-3”) to the respondent which supported her entitlement to an IRB on March 12, 2019. The OCF-3 was provided prior to her submission of an application for accident benefits (“OCF-1”) which was sent on March 26, 2019. On April 12, 2019, the respondent sent the applicant an explanation of benefits (“EOB”) which indicated that it had received the OCF-3 and OCF-1 and that it was unable to determine her eligibility for an IRB because the OCF-3 listed strain and sprain type injuries which are deemed minor in nature. Further, the EOB indicated that because of the delay in the submission of her claim, it required the applicant to attend an IE to determine her disability in order to assess her entitlement to an IRB. The letter then advised her that the benefit was not payable until after the reports were received. Attached to the letter was information outlining the two-year limitation period, gave guidance on how to appeal and listed consequences for not filing the appeal within two years.

9After the completion of its IEs, the respondent sent the applicant a subsequent EOB dated August 20, 2019, which stated that the applicant is not entitled to an IRB due to the results of two IEs completed by Dr. Syed and Dr. Brerbrayer. The EOB then summarized the medical reasons from those assessments. It also attached information outlining the two-year limitation period, gave guidance for how to appeal and listed consequences for not filing the appeal within two years.

10The applicant did not file her application with the Tribunal disputing the denial of the IRB until March 3, 2022.

11I agree with the respondent that its EOBs dated April 12, 2019, and August 20, 2019, denying the applicant’s claim for an IRB complied with the principles set out in Smith. Based on the facts before me, I find the April 12, 2019, notice sufficient because the OCF-3 was submitted prior to the OCF-1 which was significantly delayed. As a result, the respondent did not have any information to assess the applicant’s entitlement to the benefit. Further, the only medical document it did have was the OCF-3 which listed strain and sprain type physical injuries consistent with the MIG. I find the denial clear in that it indicated that the benefit would not be paid pending the results of an IE and it provided the applicant with the process for disputing the denial. Even if I were to find that the April 12, 2019 was insufficient, which I do not, I find the EOB dated August 20, 2019 also provided a clear and unequivocal denial of the benefit with medical reasons because it highlighted the findings in its IEs and attached copies to the notice.

12The applicant did not file her application disputing the denial until March 3, 2022. I find that the two-year limitation period began to run on April 12, 2021, or in the alternative August 20, 2021.

13Having determined that respondent’s denial was valid, I must still consider whether an extension of the limitation period should be granted.

14Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) allows the Tribunal to extend a limitation period. 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.

15The onus is on the applicant to establish reasonable grounds for an extension under s.7 of the LAT Act. In the absence of submissions on the applicant’s behalf identifying the above factors, the applicant has not met her onus. No explanation was provided by the applicant for filing her application outside of the limitation period. Further, I find the delay significant in that she missed the deadline by almost seven months. In addition, there is no merit to the appeal as the applicant has not met her onus in establishing her entitlement to the benefit. Other than two OCF-3s and an OCF-2, the applicant did not submit any financial documents or medical records which supported her entitlement to an IRB and her submissions fell far short of meeting her onus in meeting the legal test. Consequently, I decline to exercise my discretion in granting and extension.

The respondent’s notices denying the two OCF-18s for chiropractic treatment in the amounts of $1,384.70 and $1,977.05 were invalid.

16Since the two OCF-18s for chiropractic treatment involved identical EOBs, I have addressed them together. The applicant submitted an OCF-18 in the amount of $1,384.70 for chiropractic services proposed by Mackenzie Medical dated August 22, 2019. A second OCF-18 in the amount of $1,977.05 for chiropractic treatment was submitted on June 28, 2019.

17In response to the OCF-18s, the respondent sent the applicant two EOBs dated August 23, 2019, and July 3, 2019, advising that it received the OCF-18s submitted by Mackenzie Medical and the respective dates of those treatment plans. The letter then advised the applicant that the respondent does not agree to pay for any of the following goods, services and/or assessments because the appellant’s injuries are listed as sprains and strains which fall under the definition of minor injuries. Both EOBs attached the information outlining the two-year limitation period, gave guidance for how to appeal and listed consequences for not filing the appeal within two years.

18I do not find the above EOBs provided clear and unequivocal notice to the applicant of what was being denied because the notices did not identify the amounts of the treatment plans and what they were for. I find an unsophisticated party would not understand what was being denied. The respondent argues that the applicant was represented by counsel, a sophisticated party, who would have known of the legal requirement to dispute the denial within two years. I find this argument irrelevant because the denials were not clear and unequivocal. In my view, even a sophisticated party would not understand what was being denied. Therefore, I do not find that the applicant is barred from proceeding with her application disputing the respondent’s denial of these two OCF-18s for chiropractic treatment. However, in light of my decision on the MIG, this issue is moot.

The applicant’s accident-related 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 her accident-related impairments fall outside of the MIG.

21The applicant submits that she should be removed from the MIG because he suffers from chronic neck, shoulder, and back pain as a result of the accident which has resulted in her inability to work in her pre-accident occupation as a hairdressing assistant at a hair salon. Further, her pain has interfered with her ability to carry out her pre-accident leisure activities and her housekeeping and home maintenance tasks. In support of her position, she relies on a medical questionnaire completed by Dr. Saito, family doctor, two OCF-3s completed by chiropractors Dr. Jomal dated February 22, 2019, and Dr. Johns dated October 9, 2020, an invoice from her treating clinic showing there is an outstanding account and the IEs of Dr. Syed and Dr. Brerbrayer.

22The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on the above noted IEs. Dr. Brerbrayer diagnosed the applicant with soft tissue injuries which fall within the MIG. Dr. Syed determined that the applicant did not have any diagnosable psychological impairment.

23I agree with the respondent for the following reasons.

24The applicant’s submissions and evidence fell far short of meeting her onus that she suffers from chronic pain as a result of the accident that warrants removal from the MIG. The applicant’s submissions refer to various forms of medical evidence that were not submitted as evidence for this hearing. For example, she asserts that she saw Dr. Saito the day after the accident about her accident-related impairments and has continued to see this doctor. However, the only evidence submitted pertaining to Dr. Saito was a medical questionnaire referring to the applicant’s involvement in a motor accident on May 19, 2018. No clinical notes and records of Dr. Saito were submitted relating to the subject accident. Further, it is well established law that submissions are not evidence. Therefore, I have given her submissions and the aforementioned medical questionnaire no weight.

25In the same vein, the applicant also referred to a prescription summary in her submissions and asserts that she has been prescribed various medications for her physical and psychological impairments as a result of the subject accident. However, no prescription summary was submitted for my consideration.

26Further, the applicant relies on two OCF-3s authored by chiropractors Dr. Jomal and Dr. Johns. These OCF-3s indicate that the applicant sustained the following injuries: sprain, strain of lumbar spine, sprain, and strain of joints of lumbar spine and pelvis, headaches, low back pain, injury of ankle and foot, sprain of sacroiliac joint, radiculopathy, muscle strain, pain in joint, general anxiety disorder and giddiness, other sleep, and anxiety disorders. With the exception of sleep and anxiety disorder I find the injuries listed on the OCF-3 consistent with the MIG. I also place little weight on the chiropractor’s diagnosis of sleep and anxiety disorders as it is outside the scope of a chiropractor to diagnose these conditions. I find the OCF-3s on their own insufficient evidence to support that the applicant suffers from chronic pain as a result of the accident that would warrant removal from the MIG. In addition, I find the invoice from MacKenzie Medical showing that there is an outstanding account did little to support the applicant’s claim that she suffers from chronic pain as a result of the accident.

27Finally, the applicant relies on her self-reports about her pain complaints and psychological symptoms to the IE assessors. However, the conclusions rendered by the IE assessors do not support her position. Dr. Brerbrayer diagnosed the applicant with soft tissue injuries including cervicogenic headaches; myofascial pain of the cervical spine; bilateral rotator cuff tendinitis; mild back pain; mechanical low back pain and contusion injury of the right leg and right ankle. I find these diagnoses consistent with the minor injury definition. Further, Dr. Syed did not diagnose the applicant with any accident-related psychological impairment. I find the applicant did not submit sufficient evidence to refute the opinions of these doctors.

28For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain as a result of the accident which warrants removal from the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the disputed benefits. OCF-18s. Further, the applicant is not entitled to payment of the OCF-3 in the amount of $200.00 proposed by Mackenzie Rehabilitation Centre, or $3,134.43 for the expenses claimed in the OCF-6 dated March 13, 2019.

The applicant is not entitled to payment of interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue, the applicant is not entitled to interest.

ORDER

30For all of the above reasons, I order as follows:

a) The applicant is barred from proceeding with her claim disputing the respondent’s denial of her IRB because she did not dispute the respondent’s denial within the two-year limitation period pursuant to section 56 of the Schedule.

b) The applicant is not barred from disputing the respondent’s denial of the two OCF-18s for chiropractic treatment.

c) The applicant has not established that her impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the OCF-18s in disputed benefits. Further, the applicant is not entitled to payment of the OCF-3 in the amount of $200.00 proposed by Mackenzie Rehabilitation Centre or $3,134.43 for the expenses claimed in the OCF-6 dated March 13, 2019. No interest is payable.

d) The application is dismissed.