Sithamarappillai v. Allstate Insurance Company of Canada, 2024 CanLII 23477

Citation: Sithamarappillai v. Allstate Insurance Company of Canada 2024 ONLAT 23-007143/AABS-PI

Licence Appeal Tribunal File Number: 23-007143/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:

Jegatheeswary Sithamarappillai

Applicant

and

Allstate Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Tal Eshel, Counsel

For the Respondent: Abigail Newcombe, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jegatheeswary Sithamarappillai, the applicant, was involved in a motor vehicle accident on August 11, 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 Insurance Company of 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:

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

RESULT

3The applicant is barred from proceeding with her application.

ANALYSIS

Background and Parties’ Positions

4The applicant was involved in a motor vehicle accident on August 11, 2018. She was denied certain treatment plans by the respondent, and on June 21, 2023 submitted an application to the Tribunal disputing the respondent’s denials.

5The respondent submits that the applicant has missed the two-year limitation period specified in s. 56 of the Schedule for all of the treatment plans in dispute. It argues that all of the treatment plans were denied in 2018 and 2019. Even taking into account the COVID-19 limitation period extension granted by O. Reg 73/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2000, c.17, the applicant was well-outside the two year limitation period by one to two years. The respondent 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 does not dispute that her application was brought outside of the two year limitation period. However, she argues that she should not be barred from proceeding with her application pursuant to s. 56 of the Schedule, as s. 56 was never triggered. The applicant submits that in order for s. 56 to be triggered, the respondent’s notices of denial must be proper, including providing valid medical reasons. As all of these notices were deficient, the applicant submits that the respondent cannot rely on s. 56. She further argues that s. 7 of the LAT Act permits the Tribunal to extend the two year limitation period.

Law- Section 56

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:

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

ii. The length of delay;

iii. Prejudice to the other party; and

iv. Merits of the appeal.

The respondent’s denial notices are valid denials

OCF-18 for $1200 of chiropractic services submitted January 22, 2019

11While I find that the respondent’s initial denial notice dated February 5, 2019 failed to provide a valid medical reason for the denial, this was rectified by the subsequent Explanation of Benefits (“EOB”) dated April 29, 2019.

12The initial February 5, 2019 EOB noted receipt of the OCF-18, and stated that the respondent was unable to determine if the applicant was excluded from the Minor Injury Guideline (“MIG”). The respondent further advised that a s. 44 insurer’s examination would be arranged. In my view, this correspondence failed to provide any medical reason for the denial. There is no reference to any specific medical conditions or diagnoses, and the language is vague and boilerplate.

13However, the subsequent EOB dated April 29, 2019 was a valid denial. The correspondence identified and included s. 44 reports from the respondent’s physiatrist and psychologist, and explained that they had determined that the applicant’s injuries were predominantly minor and within the MIG, and that the proposed treatment plans were not reasonable and necessary. I find that this was a clear and unequivocal denial. 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.

OCF-18 for a psychological assessment submitted December 4, 2018

14I find that the EOB dated December 17, 2018 was a valid denial. The EOB referenced the treatment plan and specified that there was insufficient evidence of an accident-related psychological impairment or a pre-existing psychological impairment to warrant an assessment or treatment beyond the MIG. It further identified the additional information it required, namely, the complete clinical notes and records of Dr. Mrahar including diagnostic reports.

15I agree with the respondent that the December 17, 2018 correspondence was a clear and unequivocal denial and provided sufficient medical reasons. It outlined the dispute resolution process and the two year time limit. The respondent subsequently maintained the denial by way of an EOB dated April 29, 2019 which included its section 44 report.

16The applicant did not provide any submissions disputing the sufficiency of the December 17, 2018 denial. Rather, she disputes the validity of the April 29, 2019 EOB, arguing that no medical reasons were provided for the denial. I agree with the respondent that the April 29, 2019 correspondence provided a medical reason and enclosed and referenced the applicable s. 44 report. Moreover, the April 29, 2019 EOB was the second denial, subsequent to the December 7, 2018 EOB, which I have already determined was a valid denial.

OCF-18 for a chronic pain assessment submitted May 7, 2019

17I find that the EOB dated May 21, 2019 denying the OCF-18 for a chronic pain assessment was a valid denial. The applicant submits that a proper medical reason was not provided. She argues that no diagnosis other than whiplash associated disorder (“WAD2”) was identified, despite the medical records indicating otherwise. I disagree and find that sufficient medical reasons were provided in the EOB.

18The notice specifically referenced the applicant’s predominately soft tissue injuries such as WAD2 with complaint of neck pain with musculoskeletal signs, muscle strain, sprain and strain of hip and knees. The EOB further noted the lack of compelling medical evidence to support the necessity of the proposed assessment plan for chronic pain and summarized what additional evidence it required. I find this to be a clear and unequivocal denial. The respondent has identified the applicant’s medical conditions. Although the applicant may disagree with the respondent’s assessment of medical documentation, it does not render a notice invalid.

OCF-18 for a chronic pain assessment submitted November 27, 2019

19The applicant submitted a subsequent OCF-18 for a chronic pain assessment which the respondent denied by way of EOB dated December 6, 2019. The applicant submits that the respondent’s denial was insufficient and contained boilerplate language.

20I find that the December 6, 2019 correspondence was a valid denial. The EOB referenced the treatment plan, summarized minor injuries and specifically referenced the two s. 44 examinations conducted by Dr. Marchie (physiatrist) and Dr. Silverman (psychologist). As such, the respondent found that the applicant remained within the MIG. I do not agree with the applicant that the language was boilerplate. The respondent specifically referenced the IE assessments it had conducted. In my view, sufficient medical and other reasons were provided and the denial was clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

Extension of limitation period pursuant to section 7 of the LAT Act

21I do not find that the applicant has established that an extension of the limitation period pursuant to s. 7 is warranted. Although in her submissions the applicant makes reference to s. 7 and lists the four Manuel factors, no specific arguments have been provided as to how these factors have been met.

22When applying the factors set out in Manuel, I find that the applicant has not led evidence of a bona fide intention to appeal within the appeal period. The one to two year delay in disputing the denials is significant, and I note the respondent’s submissions that it has suffered prejudice by not having the opportunity to arrange for further assessments or collect medical evidence. Although the applicant has submitted some evidence by way of clinical notes and records to support the merits of her claim, given the lack of submissions on the remaining three Manuel factors, I do not find that an extension of the limitation period pursuant to s. 7 is warranted.

CONCLUSION AND ORDER

23I find that the applicant is statute-barred pursuant to s. 56 of the Schedule from proceeding with her application.

24The application is dismissed and the substantive hearing is vacated.