Citation: Kaur v. Economical Insurance Company, 2025 ONLAT 23-002808/AABS

Licence Appeal Tribunal File Number: 23-002808/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:

Kanwaljit Kaur

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Seema Passi, Paralegal

For the Respondent: Lori Marzinotto, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kanwaljit Kaur, the applicant, was involved in an automobile accident on November 11, 2019, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue in dispute is:

1. Is the applicant barred from proceeding to a hearing for the following benefits: an income replacement benefit as listed in issue 1 below and the medical rehabilitation benefits issues listed under 2(i) and 2(ii) below, because the applicant failed to dispute their denial within the 2-year limitation period?

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit (“IRBs”) in the amount of $400.00 per week from March 21, 2020 to present and ongoing, denied March 6, 2020?

2. Is the applicant entitled to the assessments proposed by Alliance Diagnostics and Treatment Inc., as follows:

i. $2,200.00 for a chronic pain assessment, in a treatment plan/OCF-18 (“plan”) dated February 16, 2021 and denied March 1, 2021,

ii. $1,723.41 for a functional abilities evaluation, in a plan submitted November 18, 2020 and denied December 1, 2020,

iii. $2,200.00 for a neurology assessment in a plan submitted August 4, 2021 and denied August 16, 2021,

iv. $2,200.00 for an orthopaedic assessment in a plan submitted August 6, 2021 and denied August 16, 2021, and

v. $2,200.00 for a physiatry assessment in a plan submitted August 16, 2021 and denied August 27, 2020?

3. Is the applicant entitled to $6,862.15 for assistive devices proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted November 23, 2022 and denied December 5, 2022?

4. Is the applicant entitled to $3,609.43 for occupational therapy proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted November 30, 2022 and denied December 5, 2022?

5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

4In her submissions, the applicant also requested a costs order be made against the respondent.

RESULT

5On the preliminary issue, I find that the applicant is statute barred from proceeding with issue 1, but is not statute barred from proceeding with issues 2(i) and 2(ii).

6On the substantive issues, I find:

1. The applicant is not entitled to the plans in dispute.

2. As there are no benefits payable, the applicant is not entitled to interest or an award.

3. The applicant is not entitled to costs.

ANALYSIS

PRELIMINARY ISSUE - The applicant is statute barred from proceeding with her claim for IRBs (issue 1)

7I find that the applicant is statute barred from proceeding with her claim for IRBs.

8The limitation period for accident benefits claims is set out in section 56 of the Schedule. It states that applications to dispute the denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the benefit.

9In 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 Company, 2002 SCC 30 (“Smith”). 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 it must include the relevant time limits that govern the process.

10Pursuant to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), the notice must provide a valid medical and any other reason for the denial.

11The respondent submitted that the applicant is statute barred from proceeding with her claim for IRBs because she did not dispute the denial within the two-year limitation period. The respondent advised the applicant that her claim for IRBs was denied on March 6, 2020 and the application in this matter was filed on March 11, 2023, more than three years after the denial. The applicant did not make any submissions regarding this preliminary issue.

12I find that the denial letter dated March 6, 2020 is a valid denial of the applicant’s claim for IRBs, thereby trigging the commencement of the limitation period. The denial letter outlines that the respondent was advised by applicant’s counsel that she had returned to work at full capacity during the first week of disability, and therefore IRBs were not payable. Further, I find that the denial letter clearly outlines the dispute resolution process and the corresponding two-year limitation period.

13Furthermore, the denial letter advises that, if the information provided by applicant’s counsel was incorrect, that an OCF-3 is required. The applicant did not respond to the denial letter and did not submit an OCF-3 until one was provided with the submissions for this hearing, well past the two-year limitation period.

14Given I have found the limitation period commenced on March 6, 2020, it follows that the applicant had until March 6, 2022 to file her appeal. The application in this matter was filed on March 11, 2023 which is past the two-year limitation period. Therefore, the applicant did not file her application for IRBs within the two-year limitation period.

15Pursuant to section 7 the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, the Tribunal has statutory discretion to extend the two-year limitation period based on four factors: a bona fide intention to appeal within the limitation period; the length of the delay; prejudice to the other party; and the merits of the appeal (see: Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997; Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492). The applicant did not make any submissions with respect to her application being filed outside the limitation period, and in the absence of any submissions, the applicant has not discharged her onus to establish why I should exercise my discretion to extend the limitation period. I have no basis to find that any of the factors weigh in her favour, and therefore, I decline to extend the limitation period.

16Based on the foregoing, I find that the applicant is statute barred from proceeding with her claim for IRBs.

PRELIMINARY ISSUE - The applicant is not statute barred from proceeding with her claim for a chronic pain assessment or a functional abilities evaluation (issues 2(i) and 2(ii))

17I find that the applicant is not statute barred from proceeding with her claims for a chronic pain assessment and a functional abilities assessment because the respondent has not demonstrated that its notices of denial for these plans are valid.

18The respondent submitted that the applicant is statute barred from proceeding with her claim for a chronic pain assessment and functional abilities evaluation because she did not dispute the denial within the two-year limitation period. The respondent advised the applicant that her claims for a chronic pain assessment and functional abilities evaluation were denied on March 1, 2021 and December 1, 2020, respectively. The application in this matter was filed on March 11, 2023, more than two years after the denials. The applicant did not make any submissions regarding this preliminary issue.

19With respect to the claim for a chronic pain assessment, I find the denial letter dated March 1, 2021 is not a valid denial letter. The denial letter indicates that the injuries outlined in the plan are minor injuries and therefore fall within the Minor Injury Guideline limit. It further advises that the respondent had not received any medical records as of the date of the plan. While the respondent provided a basis for the denial, I find that the denial letter is deficient in that it does not outline the dispute resolution process and the relevant time limits that govern the process as required by the principles set out in Smith. As such, the applicant is not statute barred from proceeding with her claim for a chronic pain assessment.

20With respect to the denial letter for a functional abilities evaluation, a copy of the denial was not included with the respondent’s submissions. While the respondent pointed me to what was supposed to be the denial letter for a functional abilities evaluation dated December 1, 2020, the pinpoint reference was actually a duplicate copy of the denial letter for the chronic pain assessment discussed above. As such, I am unable to ascertain whether the denial letter is valid and therefore find that section 56 has not been triggered. Therefore, the applicant is not statute barred from proceeding with her claim for a functional abilities evaluation.

The applicant is not entitled to the assessments listed in issues 2(i) to 2(v)

21I find the applicant has not demonstrated that the various assessments proposed by Alliance Diagnostics and Treatment Inc. are reasonable and necessary.

22To receive payment for a treatment and assessment plan under section 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

23The applicant is seeking funding for a chronic pain assessment, functional abilities evaluation, neurology assessment, orthopaedic assessment, and physiatry assessment. The applicant submits that these plans are reasonable and necessary and relies on the clinical notes and records (“CNRs”) of her family doctor, Dr. Ihsan Waraich, and a psychological assessment report completed by Dr. Mohammad-Reza Sadeghi, clinical psychologist, dated March 1, 2022.

24The plans all indicate that the applicant suffers from various impairments including back pain, lower limb pain, chronic pain syndrome, headaches, dizziness, malaise and fatigue, sleep difficulties, and anxiety. All of the plans note the goals of treatment as identifying the current status of the applicant’s injuries and impairments with a functional goal of determining the appropriate course of management.

25The applicant’s submissions reference fifteen different CNRs from Dr. Waraich on various dates ranging from November 22, 2019 to December 11, 2023. The applicant submits that these entries demonstrate that she saw her doctor complaining of ongoing pain in her back and neck since the accident. I have reviewed these CNRs, and find that the majority of the CNRs referenced are either not included with the applicant’s submissions, or they are silent with respect to back and neck pain as alleged by the applicant.

26There are three CNRs, dated July 19, 2022, March 7, 2023, and December 11, 2023, which indicate that the applicant attended with accident-related complaints. However, Dr. Waraich’s CNRs also indicate that the applicant was in another accident on January 30, 2021 (“2021 accident”), and it is not clear which accident is being referred to as the cause of the applicant’s complaints because the three visits post-date both accidents. In any event, I find that these CNRs are not contemporaneous with the various plans in dispute from 2020 and 2021, and they therefore do not speak to the reasonableness and necessity of the various assessments being sought. Furthermore, the three CNRs do not suggest that the various assessments are reasonable and necessary. Instead, the CNRs indicate that the applicant should “continue with current care”. As such, I find that Dr. Waraich’s CNRs do not support a finding that the plans in dispute are reasonable and necessary.

27With respect to the psychological assessment report of Dr. Sadeghi, I do not find it to be persuasive. Dr. Sadeghi’s report outlines that the applicant’s injuries pose significant barriers to her household and home maintenance activities; personal care activities; and family, social, and recreational activities. Dr. Sadeghi opines that the applicant would benefit from a course of physical modalities, including physiotherapy, an active exercise program, acupuncture, and massage. I find that these recommendations are outside the scope of practice of a psychologist and therefore I put little weight on Dr. Sadeghi’s recommendations regarding physical modalities.

28In addition, it is unclear from Dr. Sadeghi’s report whether the subject accident is a necessary cause of the applicant’s impairments because his report postdates the subsequent 2021 accident. Dr. Sadeghi states that the subject accident is the cause of the applicant’s impairments; however, he does not address the 2021 accident in rendering his opinion. The assessor’s lack of discussion regarding the 2021 accident is critical and as a result I am unable to determine why Dr. Sadeghi attributes the applicant’s impairments to the subject accident as opposed to the 2021 accident. As such, I am not persuaded that the impairments outlined in Dr. Sadeghi’s report are a result of the subject accident.

29Based on the foregoing, I find the applicant has not demonstrated that the various assessments proposed by Alliance Diagnostics and Treatment Inc. are reasonable and necessary.

The applicant is not entitled to $6,862.15 for assistive devices proposed by Alliance Diagnostics and Treatment Inc.

30I find that the applicant has not demonstrated on a balance of probabilities that the plan for assistive devices is reasonable and necessary.

31The plan, completed by George Kalkanis, occupational therapist, on November 23, 2022, seeks the following assistive devices:

Line 1: Planning, Coordination, Medicals Notes & Records Line 2: Completion of Assessment and Treatment Plan OCF18 Form Line 3: Supportive Equipment Education with Occupational Therapist Line 4: Travel time Line 5: Shipping fees from supplier(s) to Alliance Line 6: Delivery of recommended equipment and devices from Alliance to patient Line 7: Analgesic Cream Line 8: Glenalgesic Cream Line 9: Biofreeze Line 10: Thermal Pain Relieving Gel Line 11: Percussion Massager with heating options Line 12: Hot/cold gel pack Line 13: Heating Pad (Electric) Regular Size Line 14: Neck and Shoulder Heating Pad with moist heat option Line 15: OBUS FORME Full height lumbar support backrest Line 16: Obus Forme deep Kneading Shiatsu Cushion with Heat Line 17: Long Handle Shoe Horn Line 18: Stocking / Sock Aid Line 19: Long-handled Reacher Line 20: Long handled toenail clippers Line 21: Perching Stool Padded Line 22: body pillow Line 23: NOVA FORME Gel Memory Foam Pillow Line 24: OBUS FORME Neck&Neck 4-in-1 Cervical Pillow Line 25: Orthopaedic Mattress (King) with Memory Foam Pillow Top Line 26: grab bars with installation Line 27: Shower Chair with Back Line 28: Bath Mat, inside Line 29: Bath Mat outer non-slip Line 30: Long Handle Bath Brush Line 31: Long reach bathroom scrub brush Line 32: Toilet seat raiser with arm support Line 33: Light-weight vacuum Line 34: Swiffer WetJet Line 35: Laundry hamper with wheels Line 36: Body Pillow Case

32Mr. Kalkanis suggests that these items will assist with pain reduction and assist the applicant with returning to activities of normal living.

33The applicant’s submissions are a restatement of the information contained in the plan, and they do not point me to any additional corroborating evidence to suggest that the items outlined in the plan are reasonable and necessary.

34The respondent relies on Shakar v The Co-Operators Insurance Company, 2022 CanLII 30701 (ON LAT) [“Shakar”]) which states that a plan on its own is insufficient to establish entitlement to a benefit. While I am not bound by prior Tribunal decisions, I agree with the principle in Shakar and find that the proposed plan, in and of itself, is not persuasive in demonstrating that the assistive devices are reasonable and necessary.

35Furthermore, the respondent submits that contemporaneous medical evidence is of particular importance given that these assistive devices are being sought for the first time over three years post-accident. I agree with the respondent and find that contemporaneous medical evidence is necessary to determine the applicant’s entitlement three years post-accident.

36As such, I find that the applicant has not demonstrated on a balance of probabilities that the plan for assistive devices is reasonable and necessary.

The applicant is not entitled to $3,609.43 for occupational therapy proposed by Alliance Diagnostics and Treatment Inc.

37I find that the applicant has not demonstrated on a balance of probabilities that the plan for occupational therapy is reasonable and necessary.

38The plan completed by Mr. Kalkanis on November 29, 2022 seeks funding for six occupational therapy interventions sessions; documentation; travel time; progress report preparation; review of the medica files/records; consultation with other health professionals; planning services; discharge report preparation; completion of the plan; and disposable face masks.

39Again, the applicant’s submissions are a restatement of the information contained in the plan. The applicant’s submissions do not point me to any corroborating medical evidence to support the plan. As previously noted, a plan on its own is insufficient to establishment to a benefit and therefore the applicant has not met her onus of demonstrating that the plan for occupational therapy is reasonable and necessary.

40As such, I find that the applicant has not demonstrated on a balance of probabilities that the plan for occupational therapy is reasonable and necessary.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no payments owed, the applicant is not entitled to interest.

Award

42The applicant sought an award under s. 10 of Reg. 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.

43As I have found that the applicant is not entitled to any of the benefits in dispute, there is no basis for an award under s. 10 of Reg. 664.

Costs

44Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), a party may make a request to the Tribunal for costs where they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

45The applicant’s submissions stated that they were seeking costs on the basis that the respondent was in receipt of all the medical evidence to prove the applicant’s impairments; however, the applicant did not point me to any evidence which would suggest that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith. As such, I find that the applicant has not met her onus of demonstrating that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith.

46As such, I find that the applicant is not entitled to costs.

ORDER

47For the reasons outlined above, I find:

i. The applicant is statute barred from proceeding with her claim for an income replacement benefit;

ii. The applicant is not entitled to the plans in dispute;

iii. As there are no benefits payable, the applicant is not entitled to interest or an award;

iv. The applicant is not entitled to costs; and

v. The application is dismissed.