Citation: Garcia v. Economical Insurance Company 2024 ONLAT 23-06613/AABS-PI

Licence Appeal Tribunal File Number: 23-006613/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:

Jessica Garcia

Applicant

and

Economical Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Karla Carranza, Counsel

For the Respondent:

Mirsa Duka, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jessica Garcia, the applicant, was involved in a pedestrian-automobile accident on April 15, 2021, 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 Company, 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:

i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?

Result

3The applicant is statute-barred from proceeding with her application.

ANALYSIS

Background

4The applicant was involved in an accident on April 15, 2021. While outside on a break while working at the Wine Rack store, she saw a customer who had stolen a box of wine. She ran after him, grabbed the box and while crossing the street towards her work, was hit by a pick up truck. The applicant suffered a right foot degloving injury and underwent two procedures to her right foot on April 16, 2021, and foot debridement closure, vacuum-assisted closure and foot reconstruction procedures on April 23, 2021, April 29, 2021 and May 20, 2021.

5On May 4, 2021 the respondent’s adjuster sent the applicant an Application for Accident Benefits (“OCF-1”) together with additional forms. On May 9, 2021 the applicant acknowledged receipt of the forms. On July 20, 2021 the respondent received a Disability Certificate (“OCF-3”) and invoice from St. Michael’s Hospital. That day the respondent sent the applicant a letter advising that it had not yet received the OCF-1.

6On August 17, 2021 the applicant informed the respondent that she did not have the OCF-1 in her emails anymore. The respondent re-sent the OCF-1 to the applicant. On September 16, 2021 the respondent sent a follow up email to the applicant about the outstanding OCF-1.

7The applicant was involved in a subsequent accident on February 22, 2022 where a Lyft vehicle drove over the same foot involved in the subject accident. The applicant did not submit an accident benefit claim with respect to the subsequent accident, but on April 12, 2022 submitted the OCF-1 to the respondent with respect to the subject April 15, 2021 accident.

Law

8Section 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.

9Once 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.

10Section 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.

f. 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.

Parties’ positions

11The respondent submits that the applicant was provided with the OCF-1 package soon after the accident on May 4, 2021, and again on August 17, 2021. Despite being provided with the forms and subsequent reminders from the adjuster in the six months post-accident, the applicant did not submit her OCF-1 for almost a year after the accident, well-outside the timelines stipulated in s. 32(5) of the Schedule. The respondent further submits that the applicant has not provided a reasonable explanation for the delay.

12The applicant does not dispute that she first provided her OCF-1 to the respondent almost a year after the accident, on April 12, 2022. However, the applicant submits that she has a reasonable explanation for the delay, pursuant to s. 34 of the Schedule. She argues that following the accident, she was in the hospital and was overwhelmed by the paperwork involved in applying for an accident benefits claim. The applicant further submits that she was not aware of the severity of her physical and especially her psychological injuries, until her subsequent February 22, 2022 accident which triggered the fear and memories from the subject accident.

13From the evidence it is clear that the applicant submitted her OCF-1 well-outside the timelines stipulated in s. 32(5) of the Schedule. However, I must determine whether the applicant has a reasonable explanation for the delay in submitting her OCF-1 pursuant to s. 34.

The applicant has not established a reasonable explanation for the delay

14The applicant submits that in the period after the accident, she was overwhelmed, scared and isolated and unable to complete her application. I am not persuaded that this is a credible or reasonable explanation for the delay. Firstly, I agree with the respondent that despite the applicant’s claims that she was too overwhelmed to complete the paperwork involved with the OCF-1, the applicant was able during this period to file two Employment Insurance (“EI”) applications and submitted a WSIB claim.

15The applicant submits that she was only able to complete the EI and WSIB applications because she received help while in the hospital. However, the hospital records indicate that the social worker at the hospital similarly referred the applicant to accident benefits, and provided education on auto benefits. The applicant further reported to the EI representative on June 24, 2021 that she had the paperwork to apply for motor vehicle insurance, and that she would do it that week. The applicant also reported that she had good support from her partner after the accident. The applicant does not dispute that she was aware of her ability to claim accident benefits immediately after the accident, or that the respondent sent subsequent follow-up reminders with respect to the outstanding OCF-1.

16Further, despite the applicant claiming that she was unable to complete the OCF-1 due to feeling overwhelmed, the applicant was able to return to work post-accident to a job as a loan officer in September 2021. From September 2021 to December 2021 she was working 40 hours per week. As such, the applicant was clearly able to carry out the tasks of full-time employment. I do not find it credible that she was similarly too overwhelmed to complete the paperwork associated with the OCF-1 form.

17I am also not persuaded by the applicant’s explanation that she did not realize the severity of her injuries, or thought they would improve, until her panic attack after the subsequent accident. The applicant submits that it was only after the February 2022 accident that she realized that she “was not ok”. However, in support of this claim the applicant references statements she made when she was in the hospital immediately after the accident in April 2021 where she reported feeling anxious and fearful. The applicant further relies on statements she made in July 2021 where she raised questions about post-traumatic stress disorder. As such, from the evidence it appears that the applicant was raising concerns about potential psychological symptoms well before the February 22, 2022 accident.

18Further, even if the applicant was reporting some psychological symptoms in the period post-accident, I agree with the respondent that she has not established how these symptoms left her unable to submit her OCF-1 form. To date, the applicant has not been diagnosed with any psychological impairment. Although she self-reported a history of anxiety and depression while in the hospital, no evidence in support of this claim was provided. Immediately after the accident the applicant also reported feelings of anxiety, fear and raised questions about PTSD. However, no evidence is provided of any subsequent psychological diagnosis, treatment or referrals. The only psychological diagnosis the applicant submits is from Mr. Paganelli as detailed on the OCF-3. However, I agree with the respondent that as a chiropractor, psychological diagnoses would be outside of his scope of his practice.

19For the foregoing reasons I find that the applicant has not provided a reason that is credible or worthy of belief for the delay in providing a completed OCF-1. Without an explanation that is credible or worthy of belief, there is no need to assess the reasonableness of the explanation. In other words, the first principle is a threshold that must be met in order to engage the other principles.

Section 55

20Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not submitted an application for the benefit within the times prescribed in s. 32.

21As outlined above, I find that the applicant did not submit her completed OCF-1 within the timelines prescribed by the Schedule and has not provided a reasonable explanation for the delay. Accordingly, I find that the applicant is statute-barred from proceeding with her application before the Tribunal.

CONCLUSION AND ORDER

22The applicant is barred by s. 55(1)1 of the Schedule from proceeding with her application. The application is dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.