Licence Appeal Tribunal File Number: 24-002280/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:
Jazmin Levai
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Aaron Atwal, Counsel
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jazmin Levai, the applicant, was involved in an automobile accident on January 19, 2022, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issues are:
i. Does the Tribunal have jurisdiction under s. 280 of the Insurance Act, RSO 1990 in this matter?
ii. Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
SUBSTANTIVE ISSUES
3The 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 a non-earner benefit of $185.00 per week from January 26, 2022 to date and ongoing?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Knead Wellness, in a treatment plan submitted on February 22, 2022?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Unika Medical Centre, in a treatment plan submitted on March 14, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4On the preliminary issue, I find that the applicant is not statute-barred from proceeding to the hearing.
5On the substantive issues, I find that:
i. The applicant has not established accident-related impairments that warrant removal from the MIG;
ii. As I have found the applicant remains within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans;
iii. The applicant is not entitled to a non-earner benefit for the period in dispute; and
iv. The respondent is not liable to pay an award.
ANALYSIS
PRELIMINARY ISSUE
Law
6Section 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.
7Once 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.
8Section 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.
9Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not applied for the benefit within the times set out in the Schedule.
Background and parties’ positions
10The applicant was involved in a motor vehicle accident on January 19, 2022. On February 1, 2022 she notified the respondent of the accident by telephone call. The respondent sent the accident-benefits package to the applicant, including an OCF-1 form, the following day. An OCF-23 was sent to the respondent on February 3, 2022. The respondent confirmed receipt of the OCF-23 and requested a completed OCF-1. The respondent submits that it attempted to follow-up with the applicant by telephone on February 11, 2022, February 15, 2022, March 28, 2022, April 27, 2022, June 7, 2022 and August 10, 2022. Voicemail messages were left each time, stating that an OCF-1 was required. The applicant did not provide her completed OCF-1 until September 7, 2022, seven months after the accident benefits package had been sent to her.
11The applicant submits that she has a reasonable explanation for the seven month delay in submitting her completed OCF-1. She argues that her learning disability significantly impacts her ability to process and communicate information in a timely manner, including the legal requirements and deadlines related to her claim. The applicant also submits she has endured significant hardships in the period post-accident, including serious permanent injuries. Finally, the applicant argues that although her treating clinic did not submit her OCF-1 until September 2022, the OCF-1 was in fact dated January 22, 2022 and signed by the applicant. She argues that she should not be penalized by her clinic’s late-submission of the OCF-1.
12The respondent argues that the applicant has not provided a reasonable explanation for the seven month delay in submitting the OCF-1. It submits that the applicant’s argument that her learning disability prevented her from meeting the time limit, is not convincing. The respondent argues that the applicant was able to pursue a social work program in March 2022, soon after the accident, and sought her family doctor’s assistance to complete an ODSP application in April 2022. Since her learning disability did not prevent her from navigating other administrative processes, there is no reason why she could not submit the OCF-1 on time. It further argues that the applicant’s explanation that she should not be prejudiced by her clinic’s late-submission of the OCF-1, is also not reasonable. The respondent argues that it had called the applicant numerous times between February and August 2022, and that the applicant was well-aware that the OCF-1 was outstanding.
Was the applicant compliant with s. 32 or did she have a reasonable explanation for the delay?
13I find that the applicant was non-compliant with s. 32(5) of the Schedule as she submitted her completed OCF-1 well-outside the 30 day time limit. However, I further find that she has established that she has a reasonable explanation for the delay.
14The respondent does not dispute that the applicant suffered serious pre-existing medical conditions that were ongoing after the accident. These included anxiety, depression, poor sleep, chronic migraines, back pain, sciatica, and that she was taking medication including anti-depressants and painkillers. In November 2022 her family physician Dr. Sarah Basma completed an ODSP application which included the following conditions which had been prevalent for a year or more: major depression, learning disability, anxiety, chronic back pain, and obesity.
15The ODSP application further noted that some of the restrictions from these conditions included: poor concentration, difficulty in attending to tasks and keeping appointments, poor planning and time management, low motivation, low interest, fatigue, and it was noted that the applicant’s concentration deficit was “severe”. The applicant’s pattern of missing appointments and not replying to calls was also noted in the CNRs of her family physician, where Dr. Basma and the applicant’s endocrinologist noted the difficulties in reaching the applicant.
16The applicant’s extensive medical history, including challenges with concentration and motivation is documented by her family physician, and in my view, is a credible and reasonable explanation for her delay in submitting the OCF-1 form. Further, although the respondent points to the applicant’s ability to begin an online social work program after the accident, the applicant also reported soon after beginning the program that she found it very hard to study and focus and as a result, could not continue. In terms of the applicant’s completion of the ODSP application, although she had initially mentioned that she wanted to apply for ODSP in April 2022, the form was not actually completed until November 2022, well-after the applicant’s OCF-1 had been submitted to the respondent. As such, I do not agree with the respondent that the applicant was able to successfully navigate other administrative processes during the period of delay.
17While I agree with the respondent that it has suffered prejudice as a result of the seven month delay, the applicant would also suffer hardship if her claim were not permitted to proceed. I further note the consumer protection mandate of the Schedule. I find it would be fair to relieve against the consequences of the applicant’s failure to submit her OCF-1 within 30 days, because she has provided a reasonable explanation for her delay. Accordingly, the applicant is not barred pursuant to s. 55(1) from proceeding with the substantive issues in dispute.
SUBSTANTIVE ISSUES
Minor Injury Guideline
18Section 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.”
19An insured 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 has not established accident-related psychological impairments to warrant removal from the MIG
20The applicant argues that the medical record clearly establishes that she sustained psychological impairments as a result of the accident. Although she does not dispute a pre-accident history of anxiety, depression and poor sleep, the applicant points to her reports to her family physician a few days after the accident, stating that she was “shocked”, has panic attacks when she sees a car or thinks about the incident, and that the car accident had worsened her panic attacks and anxiety symptoms. The applicant submits that she continued to report psychological symptoms to her family doctor in the years post-accident.
21The applicant also relies on a s. 25 psychological assessment report dated July 8, 2024 where Ms. Mandeep Kaur Singh, Psych. Assoc., diagnosed the applicant with PTSD, Adjustment Disorder with Mixed Anxiety and Depressed Mood, Major Depressive Disorder, with Anxious Distress, Specific Phobia, vehicular and Somatic Symptom Disorder. Ms. Singh found that these impairments were directly related to the subject accident.
22The respondent argues that the applicant’s psychological impairments preceded, and were not exacerbated by the accident. In the years post-accident, the applicant consistently attributed her psychological impairments to her past trauma of domestic abuse, and her depression and social isolation due to her weight gain. The respondent submits that the only accident-related psychological complaint was made to her family physician, Dr. Basma, on January 22, 2022, immediately after the accident. After this date, the applicant’s psychological complaints to her family doctor only referenced non-accident-related causes.
23I find that the applicant has not met her evidentiary onus to prove that she sustained accident-related psychological impairments warranting removal from the MIG.
24While the applicant did report psychological symptoms to her family physician in days after the accident, after this initial period the applicant did not refer to the accident again as a cause or aggravating factor for her psychological impairments. The applicant does not dispute that her psychological impairments preceded the accident. The CNRs of her family doctor establish that pre-accident the applicant was taking medication for anxiety and depression, reported that she was distraught over weight issues, and that she had been hospitalized in 2010, 2011 and 2012 for depression.
25Post-accident the applicant continued to seek treatment for her psychological impairments, however, after January 2022 the accident is not referenced again in the family doctor’s CNRs with respect to psychological symptoms. In the November 11, 2022 CNR entry, it was noted that the applicant’s depression and anxiety were in context to a past history of domestic abuse. On December 9, 2022 the applicant followed up with Dr. Basma about her anxiety, social anxiety, social isolation and trauma history, none of which were attributed to the accident. The applicant had a CAMH assessment on September 20, 2023, where it was noted that the applicant’s psychological symptoms began at age 20 with panic attacks due to physical abuse. She was diagnosed with PTSD, Major Depressive Disorder, and Panic Disorder. The accident was not mentioned at the assessment.
26Although the applicant relies on the s. 25 psychological assessment report dated July 8, 2024 of Ms. Singh, I find it to be of limited persuasive value, given that it is not corroborated by the medical record. Although Ms. Singh diagnosed the applicant with PTSD, Adjustment Disorder, Major Depressive Disorder, Specific Phobia, vehicular and Somatic Symptom Disorder as a result of the accident, Ms. Singh did not review the medical record, as it was noted that no documents were available to be reviewed. I place greater weight on the applicant’s treating physicians, who noted in the years pre-and post accident that the applicant’s psychological impairments stemmed from non-accident related causes.
27Accordingly, I find that the applicant has not established that she should be removed from the MIG on psychological grounds.
The applicant has not established chronic pain as a result of the accident
28The applicant submits that as a result of the accident, she is suffering from chronic back pain, and has had to rely on prescription pain medications, including Percocet. The applicant points to the CNRs of her family physicians Dr. Basma and Dr. Lee, which document post-accident reports of back pain and functional limitations including: going up stairs, challenges with housework, physical activity and grooming. In CNR entries from November 2023 to March 2024, the applicant reported that she had been dealing with chronic back pain since the accident, and that she had been taking her father’s pain medication recently for the pain.
29The respondent submits that the applicant’s chronic low back pain preceded the accident and that the medical record clearly established that the applicant’s back pain and functional limitations were due to her weight gain. The respondent argues that Dr. Lee’s reference to “chronic back pain” due to the accident is inconsistent with the rest of the medical record, and the applicant’s prior ODSP application. It argues that the applicant continued to rely on the same pain medications pre and post accident, including taking her father’s Percocet. Further, the applicant’s functional limitations post-accident were the same as prior to the accident, and were not causally linked to the accident. Rather, the respondent submits that they were consistently noted to have been caused by weight issues.
30I find that the applicant has not met her onus to prove, on a balance of probabilities, that she has sustained chronic pain as a result of the accident.
31From my review of the medical record, I find that it establishes that the applicant’s chronic pain stemmed from non-accident-related causes. The applicant was diagnosed with chronic back pain pre-accident, and in February 2021 the applicant reported that only Percocet has been helpful for the pain. The applicant continued to report back pain throughout 2021 and reported that she felt that her weight gain has affected her back pain and her functionality. Immediately after the accident in January 2022, the applicant reported neck, mid and low back pain, and was referred for physiotherapy. The applicant reportedly attended two physiotherapy sessions.
32However, after this initial period post-accident, the applicant did not report back pain again until Dr. Basra completed the applicant’s ODSP form on November 11, 2022. However, this chronic back pain, identified as pain in the low back, hips and thighs, was not linked to the accident. Rather, it was noted that obesity was causing musculoskeletal pain. In a March 16, 2023 CNR entry the applicant reported back pain for 2.5 months, with “no trigger”.
33The applicant’s treating primary care physician Dr. Basra left the medical clinic in 2023, and the applicant began to be treated by her new doctor, Dr. Lee. At this point, beginning in November 2023, the applicant began to report that she had been having back pain “since the accident”, and in a March 4, 2024 CNR entry Dr. Lee noted that the applicant had chronic back pain “post MVA”. However, I agree with the respondent that these recent reports are not consistent with the full medical record, going back to 2020. Rather, the applicant had been diagnosed with chronic back pain pre-accident in February 2021. Post-accident, throughout 2022, the applicant’s treating physician Dr. Basra consistently found that the applicant’s chronic pain stemmed from non-accident related factors.
34Further, the applicant consistently reported that her functional limitations were due to factors other than the accident. In a July 21, 2021 CNR entry, the applicant reported that her weight gain affected her back pain and activities of daily living. This was again noted in the ODSP form completed by Dr. Basra on November 11, 2022. Accordingly, I do not find that the applicant has established that her functional limitations were caused by the accident.
35For the reasons stated above, I find that the applicant has not established accident-related chronic pain warranting removal from the MIG.
36As I have found that the applicant has not established 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.
Non-earner benefits (“NEB”)
37I find that the applicant has not demonstrated entitlement to NEBs for the period in dispute.
38Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 12(3)(c) provides that an insurer is not required to pay an NEB for more than 104 weeks after the accident.
39The 2009 decision from the Court of Appeal in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”) at paragraph 50, outlined a set of guiding principles to be considered when determining an insured person’s entitlement to NEBs, which, generally focuses on a comparison of the applicant’s pre- and post- accident activities.
40In order for an insured to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must present a thorough analysis and comparison of activities that she could do before and after the accident. The insured must first identify the activities in which she used to engage, along with their frequency and importance. In R.S. and Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) (“R.S. and Aviva”), the Tribunal held that it is impossible to properly assess whether an applicant is prevented from engaging in substantially all of the pre-accident activities in which she ordinarily engaged without sufficient information about the time commitments of the applicant’s pre-accident activities. It can not be determined what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on these activities prior to the accident” (para. 17).
41The applicant relies on the CNRs of Knead Wellness, particularly a consultation report dated January 28, 2022, to argue that she suffers from a complete inability to carry on a normal life as a result of the accident. She submits that post-accident, she has difficulties sitting, standing, walking, bending, lifting, pushing and reaching, which impairs activities including sleeping and travel. She is also unable to perform household duties, including food preparation, cooking, cleaning, laundry and grocery shopping. Finally, the applicant argues that she was unable to complete her online college social work program as a result of her accident-related impairments.
42I find that the applicant has not met her onus to prove that her accident-related impairments continuously prevent her from engaging in substantially all of her pre-accident activities. As noted in the section above on chronic pain, I have found that the applicant has not established that her functional limitations were caused by the accident. Rather, post-accident and throughout 2022, the applicant’s treating physician Dr. Basra consistently found that the applicant’s chronic pain stemmed from non-accident related factors. I have similarly found that the applicant’s psychological impairments stemmed from non-accident related causes. With respect to the applicant’s argument that she was unable to complete her college program since the accident, I agree with the respondent that the applicant has not submitted any evidence that she was pursuing any academic program or working prior to the accident.
43Accordingly, I find that the applicant has not established that she suffers from a complete inability to carry on a normal life as a result of the accident.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
Award
45The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant has not established that the respondent’s behaviour was excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.
ORDER
46On the preliminary issue, I find that the applicant is not statute-barred from proceeding with her application.
47On the substantive issues I find that:
i. The applicant’s accident-related impairments do not warrant removal from the MIG;
ii. As I have found the applicant remains within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans;
iii. The applicant is not entitled to a non-earner benefit for the period in dispute; and
iv. The respondent is not liable to pay an award.
48The application is dismissed.
Released: December 12, 2025
Ulana Pahuta
Adjudicator