Licence Appeal Tribunal File Number: 23-005850/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:
Nancy Kand
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Maria Bihnam, Paralegal
For the Respondent: Anthony M. Naples, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nancy Kand, the applicant, was involved in an automobile accident on January 14, 2020, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2Preliminary Issue: The preliminary issue to be decided is:
- Is the applicant statute-barred from proceeding with her claim for physiotherapy services because she failed to dispute her denial within the 2-year limitation period?
3Substantive Issues: The issues to be decided are:
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”) limit?
Is the applicant entitled to $2,140.58 for physiotherapy services, proposed by Wanless Rehab in a treatment plan/OCF-18 (“plan”) submitted on February 25, 2021, and denied on March 10, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Preliminary Issue:
- The applicant is precluded from proceeding with her claim for physiotherapy services because of the expiration of the limitation period.
5Substantive Issues:
The issue of the MIG is not properly before Tribunal because there are no treatment plans in dispute and therefore the MIG will not be addressed.
No interest is owing.
ANALYSIS
Preliminary Issue:
Is the applicant statute-barred from proceeding with her claim for a treatment plan for physiotherapy services?
6For the reasons that follow, the applicant is statute-barred from proceeding with her claim for a treatment plan for physiotherapy services.
7Section 56 of the Schedule provides that an application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the respondent’s refusal to pay the amount claimed. Pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999 SO 1999, c. 12, Sched G (the “LAT Act”), the Tribunal has the authority to extend the limitation period in section 56 of the Schedule.
8The applicant submits that the explanation of benefits letter dated March 10, 2021 does not trigger the 2-year limitation because the requirement to attend an insurer’s examination and possibility of payment, it is not a final determination. The applicant relies on the letter of denial received May 20, 2021 as the trigger for the two-year limitation period to dispute the denial.
9The respondent submits that the denial letter dated March 10, 2021 was proper and is the date from which the time limitation should be calculated.
10I agree with the respondent and find that that the letter of denial dated March 10, 2021, triggers the two-year limitation period set out in s. 56 of the Schedule. According to the March 10, 2021 denial letter, the respondent indicated that it “… do[es] not agree to pay for these goods and services…” and “… this OCF-18 is denied until such time that we are in receipt of a completed insurer examination report, at which point an updated response will follow.” I find this language to be clear and understandable that the treatment plan is denied. Further, the respondent has an ongoing obligation for adjustment of the file and if new medical information supporting the reasonableness and necessity of a treatment plan is received, a denial may be overturned by the insurer at that time. Meaning, that no denial is absolute. Also, the March 10, 2021 letter informs the applicant, “If you disagree with our assessment of your file and wish to dispute it, file an application with the Licence Appeal Tribunal.” This right to dispute is triggered by a denial of benefits. The letter also references the two-year time limit and warns that if not applied for within the time frame, the right to dispute the decision will be lost. For the reasons above, I find that the letter of denial dated March 10, 2021 did trigger the 2-year limitation period and was proper and in accordance with s. 38(8).
11Although the letter of denial contained the clear language for the reasons of the denial and notice of her right to appeal, I find that the applicant did not dispute the denial until May 19, 2023, the date on which the application was filed with the Tribunal. Therefore, her application was filed beyond the expiry of the applicable limitation period which ended on March 10, 2023.
12Although s. 7 of the LAT Act allows the Tribunal to extend a limitation period, the applicant did not make any submissions on whether the Tribunal should extend the limitation period. I will not use my discretion under s. 7 to extend the deadline without submissions that address the factors on why it should be extended.
13Therefore, I find the applicant is statute-barred from proceeding with her claim for a treatment plan for physiotherapy services, which was denied on March 10, 2021.
Substantive Issues:
Physiotherapy services
14As set out above, the applicant is statute-barred from appealing the denial of the physiotherapy treatment plan.
Minor Injury Guideline (“MIG”)
15I find that in the absence of a dispute for benefits under s.56, this applicant cannot proceed with her application for a MIG determination.
16The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3(1) of the Schedule 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.” Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. The MIG is not an accident benefit under the Schedule. It is a funding limit placed on the treatment of injuries sustained in an accident if those injuries are predominantly minor.
17Having determined that the applicant is out of time to appeal the denial of the treatment plan for physiotherapy, all that remains under the application is the MIG determination and interest. Pursuant to s. 280(1) of the Insurance Act, the Tribunal resolves disputes regarding entitlement to benefits or the quantum of benefits under the Schedule. Neither MIG or interest are a “benefit” under s. 56 of the Schedule. As it is well-settled that a MIG determination cannot be a stand-alone issue and must be accompanied by a disputed benefit, it follows that the applicant cannot proceed with her application at the Tribunal. Accordingly, I find the applicant is statute-barred from proceeding under s. 55.
Interest
18As there is no substantive benefit in dispute, it follows that the applicant cannot proceed with her application.
CONCLUSION and ORDER
19For the reasons stated above:
i. The applicant is statute-barred from proceeding with her claim for a treatment plan for physiotherapy services.
ii. As no benefits remain in the application, it follows that she cannot proceed with her application.
iii. The application is dismissed.
Released: May 15, 2025
Tami Cogan
Adjudicator