Citation: Hubert v. The Dominion of Canada General Insurance Company, 2025 CanLII 18231

Licence Appeal Tribunal File Number: 23-006795/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:

Shaija Hubert

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Tal Eshel, Counsel

For the Respondent: James Armstrong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Shaija Hubert, the applicant, was involved in an automobile accident on June 17, 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, The Dominion of Canada 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 in dispute are:

i. Is the applicant barred from proceeding to a hearing for the treatment plans dated September 28, 2018, October 26, 2018, August 7, 2019 and June 11, 2019, because the applicant failed to dispute her denial within the 2-year limitation period?

ii. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in the application because the applicant failed to provide necessary documents to the respondent under s. 33(6) of the Schedule?

3The Case Conference Report and Order (“CCRO”), dated January 12, 2024, lists issue i as: “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?” The parties’ submissions note that this preliminary issue is not for all benefits claimed in this application. The only treatment plans that the applicant would be time-barred from proceeding to a hearing for are dated September 28, 2018, October 26, 2018, August 7, 2019 and June 11, 2019. Therefore, I have amended issue i above accordingly.

SUBSTANTIVE ISSUES

4The substantive 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 (“MIG”)?

ii. Is the applicant entitled to the treatment and assessments proposed by Scarborough Rehabilitation Clinic as follows:

(i) $2,220.53 for a psychological assessment, in a treatment plan dated September 20, 2018;

(ii) $1,650.00 for chiropractic services, in a treatment plan dated October 26, 2018; and

(iii) $1,989.95 for a chronic pain assessment, in a treatment plan dated June 11, 2019?

(iv) $1,219.99 for chiropractic services, in a treatment plan dated August 7, 2019?

iii. Is the applicant entitled to $1,400.00 for virtual chiropractic services, proposed by Ajax Rehabilitation Centre, in a treatment plan dated June 28, 2021?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

5The CCRO lists the date of issue ii (i) as October 1, 2018. The actual date of the treatment plan is October 26, 2018. The CCRO lists the date of issue iii (i) as October 16, 2018. The actual date of the treatment plan is September 20, 2018. In addition, the CCRO lists the date of issue iii (ii) as June 21, 2019. The actual date of the treatment plan is June 11, 2019. Therefore, I have amended the issues in dispute to reflect these dates as listed on the treatment plans in dispute.

RESULT

6I find that the applicant is statute-barred from proceeding with her application to dispute entitlement to the treatment plans dated September 28, 2018, October 26, 2018, August 7, 2019 and June 11, 2019.

7I find that the applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

8I find that the applicant is not entitled to the treatment plan dated $1,400.00 for virtual chiropractic services, proposed by Ajax Rehabilitation Centre, in a treatment plan dated June 28, 2021.

9I find that no interest is payable.

Preliminary issue

Is the applicant statute-barred from proceeding?

10I find that the applicant is statute-barred from proceeding with her application to dispute entitlement to the treatment plans dated September 28, 2018, October 26, 2018, August 7, 2019 and June 11, 2019.

11Section 56 of the Schedule provides that an application to the Tribunal in respect of a benefit shall be commenced within two years after the respondent’s refusal to pay the amount claimed.

12The respondent submits that there was a clear and unequivocal denial of each of the treatment plans in dispute, triggering the limitation period, and the applicant did not appeal the denial within two years. Rather, the application was filed between 21 to 31 months after the expiration of the limitation period for the treatment plans in dispute.

13The applicant does not dispute that she filed her application to the Tribunal more than two years after the respondent’s denials. The applicant submits that because the treatment plans in dispute were denied on the basis of her injuries falling within the MIG, if the Tribunal disagrees with the respondent about the applicability of the MIG, then the denials are no longer valid.

14Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (“Turner”), is the most applicable case to this dispute and is binding on me. In Turner, the court agreed that the limitation period starts following a clear and unequivocal denial of benefits, which includes reference to the two-year limitation period. Moreover, Turner concluded that the reason for the denial does not need to be legally correct. Specifically, the Court stated:

The purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant legislation, and the purpose of such notice.

15Accordingly, I find that the respondent is not held to a standard of correctness when assessing whether the limitation period is engaged. Rather, the limitation period is engaged when a clear and unequivocal refusal to pay is given, together with reference to the two-year limitation period.

16Upon review of the denial letters in respect to the treatment plans in dispute, I find that the respondent provided a clear and unequivocal denial of each of the treatment plans in dispute and referenced the two-year limitation period. I find that the applicant did not submit her application within the two-year limitation period.

Should the limitation period be extended pursuant to section 7 of the LAT Act?

17I do not exercise my discretion under s. 7 of the LAT Act to extend the statutory limitation period.

18Pursuant to s. 7 of the Licence Appeal Tribunal Act, (“LAT ACT”), the Tribunal has the statutory discretion to extend the two-year limitation period in s. 56 of the Schedule, if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting the relief. When considering whether to exercise discretion under s. 7, the Tribunal considers the following four factors set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. These factors are not strict elements that must each be met in order to grant an extension of time, rather a holistic approach must be taken to the analysis. No one factor is determinative. The Court indicated that these factors are subject to the broader rule than an extension should not be granted unless the “justice of the case” requires it. It is the applicant’s onus to establish that there are reasonable grounds for granting an extension.

19The applicant submits that the Tribunal should exercise its discretion to extend the limitation period. The applicant submits that her intention to appeal within the appeal period is demonstrated by the fact that she was actively engaged in all aspects of her accident benefits claim and produced medical evidence to support her claim on an ongoing basis. The applicant further submits that the respondent has not demonstrated any prejudice that would flow to it as a result of the extension.

20The respondent submits that the applicant has not shown a bona fide intention to appeal within the limitation period. The respondent submits that the length of delay, between 21 to 31 months after the expiration of the limitation period, has not been explained by the applicant. The respondent further submits that there is incurable prejudice to the respondent if the limitation period is extended.

21I find that the applicant has not demonstrated that she had a bona fide intention to appeal within the timelines, as assertions that the claim was active is not evidence of her intention to appeal the denied treatment plans. I further find that the length of time it took the applicant to submit the application was excessive. The applicant has not provided any reasons or explanation as to why she was late in submitting the application. I further find that there is some prejudice to the respondent if the application was allowed past the two-year limitation in having to defend denials that are over the limitation period. I find that the justice of the case does not support the granting of an extension of time. Therefore, I do not exercise my discretion under s. 7 of the LAT Act to extend the limitation period.

22For the reasons stated above, I find that the applicant is statute-barred from disputing her entitlement to the treatment plans dated September 28, 2018, October 26, 2018, August 7, 2019 and June 11, 2019.

Failure to provide necessary documents under s. 33(6) of the Schedule

23The CCRO lists the preliminary issue: “Is the applicant barred from proceeding to a hearing for all benefits claimed in the applicant because the applicant failed to provide necessary documents to the respondent under s. 33(6) of the Schedule?”.

24I find that while this issue was listed as preliminary issue in the CCRO, neither party has provided submissions or addressed this issue. I therefore have not made any findings with respect to this issue.

SUBSTANTIVE ISSUES

The applicant sustained predominantly minor injuries as defined under the Schedule

25I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 MIG funding limit on treatment.

26Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

27An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

28In this matter, the applicant submits that she should be removed from the MIG based on her pre-existing conditions. She further submits that she should be removed from the MIG because of her physical and psychological impairments.

a) The applicant is not removed from the MIG on the basis of a pre-existing medical condition

29I find that the applicant has not demonstrated on a balance of probabilities that she suffers from a pre-existing condition that warrants removal from the MIG.

30The applicant submits that her pre-existing medical conditions have been well documented and prevent her from reaching maximal medical recovery if subjected to the MIG limits. She submits that prior to the accident, she was diagnosed with a lumbar strain, lumbago, coccydynia and sciatica by Dr. Mary Chacko, family physician on July 20, 2012. She further submits that she was diagnosed with early seropositive rheumatoid arthritis in her fingers, toes and elbow joints, by Dr. Kamini Manokaran, rheumatologist, on March 22, 2018.

31The respondent submits that while the applicant had complaints of lumbar strain/sciatica on July 20, 2012, there is no subsequent medical evidence to support ongoing complaints or that she suffered back pain at the time of the accident, six years later. The respondent further submits that on March 22, 2018, the applicant was diagnosed with rheumatoid arthritis in her fingers, toes and elbow joints. She was prescribed methotrexate but never filled the prescription.

32I find that even if I were to accept that the applicant has provided documented evidence by a health practitioner of a pre-existing medical condition by providing the two clinical notes relied on by the applicant, the applicant has not met her onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent her from achieving maximal medical recovery if she is subject to the MIG limits.

33For these reasons, I find on a balance of probabilities that the applicant has not satisfied s.18(2) of the Schedule.

b) The applicant is not removed from the MIG on the basis of chronic pain

34I find that the applicant has not demonstrated on a balance of probabilities that she suffers from a chronic pain condition that warrants removal from the MIG.

35Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

36The applicant submits that her physical injuries are not minor in nature given both the chronicity of her symptomatology and the diagnoses rendered post-accident. To support her position, she relies upon the July 17, 2019 Insurer Examination (“IE”) reports of Dr. Seyed Hosseini, physiatrist, and Ms. Tanya Blazevic, Kinesiologist.

37The respondent submits that the applicant has failed to adduce compelling medical evidence to support that she should be removed from the MIG based on chronic pain or that she suffers ongoing pain accompanied by functional impairment or disability.

38I find the decision in B.G. v. Aviva Insurance Canada, 2020 CanLII 14468 (ON LAT), cited by the respondent, persuasive. The Tribunal held that an applicant is not automatically removed from the MIG because of ongoing pain alone at any level. Ongoing pain also must be accompanied by some functional impairment or disability, and it must be of a severity that it significantly disrupts pre-accident activities of daily living or disables the applicant’s participation in those activities.

39I find that the applicant has not demonstrated that the medical evidence supports that she suffers from chronic pain or that she has a corresponding functional impairment as a result of the accident. My reasoning is based on the following findings.

40Firstly, I find that the applicant has not addressed her functional impairments in her submissions, which is a key element of establishing chronic pain. There are no arguments made by the applicant with respect to the activities that she is no longer able to perform as a result of the accident.

41Secondly, I agree with the respondent that upon review of the opinions of Dr. Hosseini, physiatrist, Dr. Chacko, family physician, and Dr. S.M. Liao, treating physiatrist, there is no diagnosis of chronic pain or a chronic pain disorder. According to these physicians, the applicant sustained strain/sprain injuries that would fall within the MIG.

42Thirdly, with respect to the report of Dr. Wilderman, dated August 30, 2019, the applicant makes a limited reference to the report at paragraph 13 of her submissions, by stating that this report was submitted to the respondent on December 2, 2019. However, there are no submissions made by the applicant as to how this report relates to the issues in dispute or what aspects of the report should be considered by the Tribunal. The applicant has not connected the findings of Dr. Wilderman to her argument to removed from the MIG. Therefore, I attribute limited weight to the report. While Dr. Wilderman’s report states that he reviewed medical documentation, there is no indication as to what medical documentation he reviewed and there is no reference to any medical reports or documents within his report. I therefore cannot find that Dr. Wilderman relied on anything more than the self-reporting of the applicant in reaching his conclusions.

43Thirdly, the IE report of Dr. Hosseini, dated July 17, 2019, concluded that the applicant suffered injuries that are minor in nature. The applicant submits that the report identifies that the applicant has ongoing left knee pain which would remove her from the MIG. I find that while Dr. Hosseini recommended that the applicant should have radiographs of her knee, there is no evidence before me that this recommendation was followed, and I have not been provided with a copy of any radiographs. Therefore, I accept Dr. Hosseini’s opinion that in the absence any diagnostic investigations to suggest otherwise, it is his opinion that the applicant’s injuries are minor in nature.

44Finally, the applicant relies upon the IE Functional Abilities Examination report of Ms. Blazevic, dated July 17, 2019 to show that her pain has lasted longer than six months. The applicant has quoted the report listing the tests that she declined to undergo due to her reported pain. Upon review of this report, Ms. Blazevic commented that the applicant demonstrated pain-based self-limiting behaviour, resulting in declining and terminating most tests. She notes that insufficient data was obtained to provide a work tolerance or physical demand level, however, this finding on its own does not indicate the presence of functional limitations. Ms. Blazevic stated, “As it is beyond the scope of a Functional Abilities Evaluation to determine medical, neurological, psychological, or other impairments and causation, further comment on whether such impairments exist to support the claimant declining or terminating the above-noted activities is deferred to the co-assessor participating in this multidisciplinary evaluation.” I give little weight to this report based on the findings of Ms. Blazevic that she is deferring to her co-assessors as she cannot make any findings.

45For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.

c) The applicant is not removed from the MIG on the basis of psychological injuries

46I find that the applicant has not demonstrated on a balance of probabilities that she suffers from psychological injuries that warrant removal from the MIG.

47The applicant submits that she suffers a psychological impairment as a result of the accident. She relies upon the treatment plan by Dr. Harinder Kaur Mrahar, psychologist dated September 20, 2018. She submits that Dr. Mrahar diagnosed her with moderate depressive episode, adjustment disorder and specific (isolated) phobia. The applicant also submits that the July 17, 2019 psychological IE report of Dr. A. H. Rubenstein, psychologist, cannot be relied upon because cultural factors affected the results of validity testing.

48The respondent submits that the applicant does not suffer a psychological impairment as a result of the accident that would remove her from the MIG. The respondent argues that the note of Dr. Mrahar dated September 20, 2018 was not a complete psychological assessment, but part of a “psychological screening” for the treatment plan dated September 20, 2018. The screening was conducted by Tatijana Kecman, who is identified as having an MA in psychology. Ms. Kecman is a psychotherapist, and unable to provide any psychological diagnosis. The respondent submits that there is no evidence that Dr. Mrahar ever met with the applicant or spoke directly with the applicant. The respondent further submits that by the nature of the screening interview, it appears that no psychometric testing was completed. In addition, the respondent submits that there are no psychological complaints recorded in the CNRs of Dr. Chacko, family physician, in relation to the accident. The respondent further relies upon the July 17, 2019 IE report of Dr. Rubenstein, psychologist, where the applicant denied any psychological problems. Dr. Rubenstein opined that the applicant had not sustained any diagnosable psychological impairment.

49I agree with the respondent that the evidence tendered by the applicant does not demonstrate that she suffers a psychological impairment as a result of the accident. In reviewing the records of Dr. Chacko, family physician, I do not find any compelling reference that indicates that she consulted Dr. Chacko about psychological impairments or that she suffered a psychological injury that warranted an assessment.

50I give little weight to the pre-screen report of Ms. Kecman in the treatment plan dated September 20, 2018. I find that the decision relied upon by the respondent in L.H. v. Certas Direct Insurance company, 2019 CanLII 76976 (ON LAT), persuasive. In L.H., the Tribunal declined to give any weight to a psychological pre-screen for the following reasons:

i. The applicant did not submit as evidence any CNRs of the psychologist;

ii. The pre-screen report was completed based on the interview with the applicant and the subjective information provided by the applicant without any testing;

iii. There is no indication of what medical reports or records were reviewed in preparation of the report and there is no information about the duration of the pre-screen.

51I find that these same issues apply to the pre-screen by Ms. Kecman.

52I find that the IE report of Dr. Rubenstein, dated July 17, 2019, shows that the applicant did not sustain any diagnosable psychological impairment as a result of the accident. The applicant advised that she occasionally feels depressed but denied any psychological problems as a result of the accident. While the applicant submits that cultural factors affected the results of validity testing, I have no evidence before me to support this.

53I find that the applicant has not provided the Tribunal with any other objective medical records to support her claims of ongoing psychological impairments or that her psychological impairments would warrant her removal from the MIG.

54For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment as a result of the accident and therefore she is not removed from the MIG on this basis.

The applicant is not entitled to the disputed treatment plan for chiropractic treatment

55As the applicant is within the MIG, I find it is not necessary to consider whether the treatment plan dated June 28, 2021 for chiropractic treatment, in the amount of $1,400.00, is reasonable and necessary.

56As an alternative argument, the applicant submitted that she is entitled to the treatment plan because the respondent’s denial did not comply with s. 38(8) of the Schedule. For the reasons that follow, I find that the respondent complied with s. 38(8) of the Schedule.

57Section 38(8) of the Schedule requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

58I find that the respondent’s denial of the treatment plan complied with s. 38(8) of the Schedule and therefore the applicant is not entitled to the treatment plan on this basis. Upon review of the denial letter dated July 12, 2021, I find that the respondent provided medical reasons for the denial and referred to the treatment plan in dispute and the deficiencies set out in the plan. The letter addresses the applicant’s specific complaints and the medical evidence. The letter also noted that the applicant’s injuries continued to be within the MIG based on the IE report dated July 17, 2019. I do not find that the letter provides boilerplate language as suggested by the applicant.

59As a result, I find that the respondent’s denial of the treatment plan complied with s. 38(8) of the Schedule, and therefore, the applicant is not entitled to the treatment plan on this basis.

Interest

60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that no benefits are payable, it follows that no interest is payable.

ORDER

61For the reasons outlined above, I find:

i. The applicant is statute-barred from proceeding with her application to dispute entitlement to the treatment plans dated September 28, 2018, October 26, 2018, August 7, 2019 and June 11, 2019;

ii. The applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury;

iii. The applicant is not entitled to the treatment plan dated $1,400.00 for virtual chiropractic services, proposed by Ajax Rehabilitation Centre, in a treatment plan dated June 28, 2021;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.