Khan v. Pembridge Insurance Company, 2025 CanLII 31143
Licence Appeal Tribunal File Number: 23-000299/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:
Amatul Khan
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Michelle Jorge, Counsel
For the Respondent: Yalda Aziz, Counsel
HEARD: By way of written submissions
OVERVIEW
1Amatul Khan (“the Applicant”) was involved in an automobile accident on September 7, 2019, and sought benefits from Pembridge Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In her initial written submissions, the Applicant withdrew a number of issues in dispute, and made submissions on the remaining issues. In response, the Respondent conceded its position on several other issues in dispute. The remaining issues in dispute are as follows.
ISSUES IN DISPUTE
3Preliminary Issue: The preliminary issue to be decided is:
i. Is the Applicant barred from proceeding to a hearing on her entitlement to the chiropractic treatment plan, dated February 25, 2020, because she never disputed the denial within the 2-year limitation period?
4Substantive Issues: The issues to be decided in the hearing are:
Is the applicant entitled to $1,910.08 for chiropractic services, proposed by Downsview Healthcare Inc., in a treatment plan dated February 25, 2020?
Is the applicant entitled to $137.97 for a walker, submitted on a claim form (OCF-6) dated July 25, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The Applicant may proceed with her application regarding the February 25, 2020 plan.
6The Applicant is not entitled to the plan because she has not demonstrated that it is reasonable and necessary as a result of the accident.
7The Applicant is not entitled to the costs of the walker because she has not demonstrated that it is a reasonable and necessary expense as a result of the accident.
8No interest or award is payable.
9The application is dismissed.
BACKGROUND
10The Applicant was the front-seat passenger of a vehicle which was struck on the passenger’s side.
11She was transported by ambulance to the hospital and examined. No acute trauma abnormalities were observed at the hospital and the Applicant was discharged with instruction to follow-up with her family physician thereafter.
12The Applicant’s health history is significant for a cervical fusion surgery in 2018. She was in the recovery stage at the time of the accident, as her neck and upper extremity symptoms had not fully resolved by the time of the accident.
13Following the accident, the Applicant claims an exacerbation of her pre-existing issues.
ANALYSIS
14With respect to the preliminary issue, the Applicant concedes that she filed her appeal more than two years following a valid denial of the benefit. Instead, she submits that the limitation period should be extended pursuant to section 7 of the Licence Appeal Tribunal Act (“the LAT Act”). In this case, the onus is on the Applicant to demonstrate that the limitation period should be extended pursuant to the LAT Act.
15For the substantive issues, the onus is on the Applicant to demonstrate that the goods and services are reasonable and necessary as a result of the accident.
The Applicant may proceed with her application
16Section 56 of the Schedule establishes a two-year limitation period for the Applicant to dispute entitlement to a benefit denied by the Respondent.
17Here, the limitation period is extended by 26 weeks, as a result of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg 73/20 (“the Reopening Act”). The effect of the Reopening Act is that the deadline for the Applicant to dispute entitlement to the plan is extended by 26 weeks, to September 2, 2022. However, the Applicant filed her appeal on January 11, 2023, 4 months after the extended deadline of September 2, 2022.
18The Applicant relies on section 7 of the LAT Act to extend the deadline to file her appeal. She submits that when accounting for the four factors outlined in Manuel v. Registrar, 2012 ONSC 1492 (“the Manuel factors”), there are reasonable grounds to permit her to proceed with her appeal. In response, the Respondent submits that there are no reasonable grounds to extend the limitation period beyond what had already been extended by the Reopening Act.
19The Manuel factors are: the length of delay, a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the merits of the appeal. The Manuel factors are not strict elements that must be met and may push or pull differently when analysing whether to extend the limitation period.
20The Applicant claims that the four-month delay is not significant or excessive, and highlights Tribunal decisions where the limitation period was extended by four months. The Respondent submits that the Applicant benefitted from a six-month extension of the limitation period and that there is no reason to extend the limitation period in this case. It also highlights cases where the Tribunal barred an application due to a two-month delay.
21Indeed, the Applicant has benefitted from a six-month extension of the deadline by operation of the Reopening Act. However, as outlined in Sharma v. Allstate Insurance, 2022 ONSC 803, the correct period to assess the length of delay is the period after the expiration of the limitation period, regardless of whether an intervening act or event extends the limitation period. Thus, it would be improper to consider the 26-week extension of the limitation period when assessing the Manuel factors.
22The Applicant provided no reason for the four-month delay. Whereas, in the case she relies on, a four-month delay was permitted on account of a mistaken belief that the limitation period would not be enforced because of a pending catastrophic impairment designation. I have no evidence or submissions before me suggesting that the Applicant believed that the limitation period would not be enforced. The Applicant submits that she had a bona fide intention to appeal during the appeal period but otherwise never addressed how or why I should find that she had an intention to appeal during this period. Similarly, she has led no evidence on the issue. Her points on these two Manuel factors are unpersuasive.
23I find the Applicant’s submissions on this issue of prejudice to the other side to be persuasive. She submits that the Respondent maintains its evidentiary record and that it can raise a defence based on her substantive entitlement. However, I reject her position that she suffers prejudice from not extending the deadline because the test considers only the prejudice to the other side. Likewise, I reject the Respondent’s position that extending the deadline creates institutional uncertainty because such a position was rejected by the Court in Manuel.
24Accordingly, I find no prejudice to the Respondent in extending the deadline because the Respondent is able to defend the denial on the merits. The benefit was denied based on a report produced by a certified medical professional and extending the limitation period for a written hearing would thus not change the opinion that is outlined in their report.
25I find that the appeal has merit. The Respondent, upon receipt of the Applicant’s submissions, conceded its position on virtually all the remaining plans in dispute. This indicates that there is merit to the Applicant’s appeal. This factor weighs heavily in favour of the Applicant when considering whether to extend the limitation period.
26Overall, I find that the factors weigh in favour of the Applicant. The appeal has merit and there is no prejudice to the Respondent in extending the limitation period. The overall justice of the case provides that the parties be given finality in a dispute that is relatively small in relation to the benefits consumed to-date, and is in keeping with the Tribunal’s mandate to ensure efficient, proportional, and timely resolution of the merits of proceedings before it. Accordingly, I find that the Applicant may proceed with her appeal on this issue.
The Applicant has not demonstrated that the plan is reasonable and necessary
27I find that the Applicant has not demonstrated that the chiropractic and massage therapy plan is reasonable and necessary as a result of the accident.
28I find that the Applicant’s evidence is supportive of a physiotherapy plan, not a chiropractic and massage therapy plan. As outlined by the Applicant, her contemporaneous evidence is that of her treating neurosurgeon, Dr. M. Fehlings, who recommended physiotherapy on January 7, 2020. She also submits that the Respondent accepted that she suffered psychological injuries as a result of the accident, and that her psychological wellbeing is intrinsically connected to her physical recovery. However, the plan in dispute proposes services provided by a chiropractor and a massage therapist – not a physiotherapist. Thus, she has not provided evidence to support a finding that the plan is reasonable and necessary as a result of the accident because her treating neurosurgeon has recommended physiotherapy, not chiropractic treatment or massage therapy.
The Applicant is not entitled to a walker
29I find that the Applicant has not demonstrated that a walker is reasonable and necessary as a result of the accident.
30The Applicant seeks funding for a walker on account of difficulty ambulating after the accident. She submits that a July 15, 2022 note by Dr. Fehlings identified that she was suffering from fatigue and having difficulty ambulating. However, Dr. Fehling never recommended any devices during this consultation. Instead, Dr. Fehlings referred the Applicant to a physiatrist and recommended that she follow up with the anesthesia pain team.
31Similarly, the Applicant highlights that she fell in her kitchen on January 5, 2023, suggesting that it is due to accident-related weakness and difficulty ambulating. However, the hospital records from that visit make no mention of the accident, nor weakness, or difficulty ambulating. Instead, the records clearly state that the Applicant tripped on shoes and fell forward. It does not appear that the fall is related to the accident. Accordingly, I find no medical basis to find a walker to be reasonable and necessary as a result of the accident.
Interest
32Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that none of the remaining issues in dispute are reasonable and necessary, it follows that no payments are due, and no payments went overdue, warranting interest.
Award
33The Applicant never made any submissions on the issue and never requested an award in her submissions, despite it being listed as an issue in dispute. As a result, she has not met her onus to demonstrate entitlement to an award. Accordingly, no award is payable.
CONCLUSION AND ORDER
34The majority of the issues in dispute were resolved during the hearing process.
35I find that the Applicant is not entitled to the plan because she has not demonstrated that it is reasonable and necessary as a result of the accident.
36The Applicant is not entitled to the costs of the walker because she has not demonstrated that it is a reasonable and necessary expense as a result of the accident.
37No interest or award is payable.
38The application is dismissed.
Released: April 10, 2025
__________________________
Brian Norris Adjudicator