Licence Appeal Tribunal File Number: 23-013620/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:
Sara Hlywka
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Maria Aslam, Paralegal
For the Respondent: Stephen Whibbs, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sara Hlywka, the applicant, was involved in an automobile accident on August 1, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 1, 2019, to date and ongoing?
ii. Is the applicant entitled to $2,196.08 for physiotherapy services, proposed by MacKenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated May 2, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant remains subject to the Minor Injury Guideline (“MIG”).
4She is not entitled to an IRB, the treatment plan for physiotherapy, an award under s. 10 of Reg 664 or interest.
5This application is dismissed.
PROCEDURAL ISSUES
The period in dispute for IRB will be from August 1, 2019 to date and ongoing
6The Case Conference Report and Order (“the order”) dated June 3, 2024 sets the period of the IRB dispute from May 7, 2019 to date and ongoing. In submissions, both parties note that this period predates the date of the accident which occurred on August 1, 2019.
7I find that this is most likely an error on the part of the Tribunal and will set the period of the IRB dispute from August 1, 2019 to date and ongoing. The applicant addresses this in her submissions and consents to narrowing the timeframe in dispute to be bound by the date of the accident.
The respondent filed their submissions 56 minutes past the deadline
8In her reply, the applicant submits that the respondent filed their submissions at 5:23pm on February 7, 2025, after the deadline set in the order of 5pm on February 7, 2025.
9Despite the applicant’s submissions that the respondent filed its submissions late, the applicant does not appear to be requesting an order to exclude the submissions due to late filing. Nor has the applicant provided any submissions or evidence as to whether she suffered prejudice from the respondent serving submissions 56 minutes late.
10When balancing prejudice to the parties, I find that the applicant suffered minimal prejudice from the delay in the respondent’s filing of submissions.
11However, the respondent would suffer significant prejudice if its submissions and evidence were excluded in their entirety.
12Rule 3.2 of the Licence Appeal Tribunal Rules, 2023 gives the Tribunal authority to vary or waive the application of any Rule or procedure.
13Therefore, I will note for the record, that the respondent’s submissions were served 23 minutes following the deadline imposed by the Tribunal. However, I will consider the respondent’s submissions and evidence at this written hearing.
The Minor Injury Guideline (“MIG”) is added as an issue in dispute
14The Tribunal’s order dated June 3, 2024 sets the issues in dispute as those identified in paragraph two above.
15In her written hearing submissions, the applicant appears to be disputing whether she remains within the MIG or whether she should be removed from the MIG due to her accident-related impairments.
16The respondent notes this in its submissions, seemingly agreeing that the MIG is a live issue. After stating that the Tribunal does not have jurisdiction to consider the MIG because it is not specifically listed in the case conference order the respondent goes on to address the applicability of the MIG, stating, “in the event that the Tribunal does consider the MIG” and then offering substantive submissions on the applicability, addressed in further detail below.
17Evidence before the Tribunal, namely the adjuster’s log notes, confirms that the $3,500.00 limit under the MIG has been exhausted.
18The parties did not bring a motion after the case conference or at any point before the hearing to add the MIG as an issue in dispute, yet both parties have offered submissions on the applicability of the MIG, such that I am confident that it is a live dispute between the parties that the Tribunal’s order did not capture.
19As both parties have made submissions on the applicability of the MIG, and the disputed treatment plan cannot be decided on its merits without first addressing the MIG, I am similarly confident that the parties were provided with an opportunity to be heard on the issue and will exercise my power under rule 3.2 and vary the order dated Jun 3, 2024 to add the applicability of the Minor Injury Guideline as an issue in dispute.
ANALYSIS
The applicant is not entitled to an Income Replacement Benefit
20I find that the applicant has not proven entitlement to an income replacement benefit.
21To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify: (i) the essential tasks of their employment; (ii) which tasks they are unable to perform and; (iii) to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
The applicant is not entitled to an IRB prior to April 15, 2020
22It is agreed in submissions that the applicant first submitted a disability certificate (“OCF-3”) to the insurer on April 15, 2020.
23Section 36(3) of the Schedule states that the applicant shall not be entitled to a specified benefit for any period before a completed disability certificate is submitted.
24The applicant does not dispute that she first submitted her OCF-3 on April 15, 2020. Nor did the applicant argue in her submissions that there was a reasonable explanation for the delay under s. 34 of the Schedule. Therefore, I find that the applicant is not entitled to an IRB for any period prior to April 15, 2020.
The applicant is not entitled to an IRB from April 15, 2020 to date and ongoing
The respondent properly denied the IRB
25The applicant submits that the respondent has not complied with s. 36(5) of the Schedule and has not properly denied the benefit.
26The respondent submits that there have been no procedural deficiencies in the respondent’s adjudication of the claim, and that the applicant has not complied with a request made under s. 33(1). Section 33(1) gives the insurer the authority to compel the insured to produce documents necessary for the insurer to determine the entitlement to a benefit.
27Section 36(4) of the Schedule states that:
Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall:
a) Pay the specified benefit;
b) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) Send a request to the applicant under subsection 33 (1) or (2).
28An application (“OCF-1”) and disability certificate (“OCF-3”) were received by the respondent on May 7, 2020 and April 15, 2020 respectively. On May 20, 2020—which is within 10 business days of the receipt of both the OCF-1 and OCF-3—the respondent wrote to the applicant acknowledging receipt and invoking s. 32(10)(a) of the Schedule.
29Section 32(10)(a) allows the respondent to delay determining entitlement of a benefit for 45 days if the applicant fails to notify the insurer within the time limit set out in s. 32(1) of the Schedule.
30On June 12, 2020, the respondent wrote to the applicant and requested the following under s. 33(1) of the Schedule:
i. Completion of Part 8 of the OCF-1;
ii. The applicant’s complete Employment Insurance file;
iii. Completed Employer’s Confirmation (“OCF-2”) form, completed by the applicant’s employer;
iv. Paystubs or bank statements showing pay deposit 4 weeks prior to the accident;
v. Particulars of any short-term disability, long-term disability or union benefits available;
vi. Paystubs of income earned after the accident;
vii. Completion of an enclosed Declaration of Post-Accident Income (OCF-13);
viii. Decoded OHIP summary from January 2017 to the date of the letter;
ix. Records of any specialist who attended to the applicant from the date of loss to the date of the letter;
x. Confirmation of the applicant’s participation in a phone statement; and
xi. If a statement is not allowed, written update regarding same so that a Statutory Declaration can be utilized.
31The applicant submits that by August 12, 2020 they had provided the following:
i. OCF-1
ii. OCF-3
iii. OCF-10
iv. EI Statements; and
v. Recorded telephone statement
32There have been no submissions made or evidence adduced that would indicate that the applicant has satisfied the remaining items in the s.33(1) request.
33The applicant submits that the respondent had all the information required to adjust the benefit, and the s.33(1) request should be considered fulfilled, as of August 12, 2020. Accordingly, the applicant argues that pursuant to s. 36(5) of the Schedule, beginning on August 12, 2020, the respondent was required to pay IRBs, or give a notice under s. 36(4)(b) requesting an IE, which they did not do until March 24, 2021.
34I disagree with this position. The documentation requested by the respondent included medical records, which are reasonable to request in this case where the respondent was notified of injuries related to the accident over eight months after the date of the accident. The request also included evidence of post-accident employment. The records on file, and the applicant’s own statements to the insurer indicate that she worked post-accident. It is reasonable for the insurer to request this documentation as it affects the calculation of the benefit.
35The respondent submits that this s. 33 request was not fully complied with. Therefore, on March 24, 2021, the respondent denied the benefit pending s.44 assessments.
36This denial letter states that the medical records of the applicant indicate that she was provided time off from work due to stress related to her home situation and not due to accident-related injuries. The insurer notified the applicant that in accordance with s.36(4)(b) of the Schedule, she is required to attend an insurer’s examination.
37Based on the above fact pattern, I find that there were no procedural deficiencies with the respondent’s conduct following the accident.
38The respondent notified the applicant within 10 business days of receipt of both the OCF-1 and OCF-3 that it was invoking s. 32(10)(a) of the Schedule extending the time period for a response to 45 days.
39The respondent then, within 45 days, made a request under s. 33(1). There has been no evidence adduced or submissions made that would lead me to believe that this request was fully complied with. As such, I agree with the respondent that the applicant was non-compliant with s. 33(1) of the Schedule, and that pursuant to s. 33(6), the respondent was not liable to pay IRBs for any period that the applicant failed to comply with the s. 33(1) request.
40The respondent then sent a denial letter on March 24, 2021 which denied the benefit for the following reasons:
i. Records of Dr. Strangway indicated the applicant was stated to return to work on October 15, 2019 from maternity leave;
ii. Dr. Strangway’s notes also indicate that time off from work was required in March of 2020 due to stress related to the applicant’s home situation and not due to accident related injuries;
iii. The applicant’s Employment Insurance (“EI”) file indicated the applicant was working with “Helping Hands” until March 26, 2020; and
iv. The applicant’s legal representative advised that the applicant worked with “Northern Call Solutions” for one month.
41These reasons make it clear that the respondent has carefully reviewed all the records available. The respondent has indicated that the stress that kept the applicant from working is noted as not being accident related, which is a medical reason. Therefore, I find that the respondent has provided sufficient reasons for denying the claim to an IRB, in the timelines set by the Schedule.
42Accordingly, I find that the applicant has not established that IRBs should be payable due to any procedural deficiencies.
The applicant has not proven substantive entitlement to an IRB
43I find that the applicant has not established that she suffers a substantial inability to perform the essential tasks of her employment, as a result of her accident-related impairments.
44In support of her claim to an IRB, the applicant references the OCF-3 dated April 4, 2020, and clinical notes and records (“CNRs”) of Dr. Fred Strangway, family physician, dated October 15, 2019 and March 9, 2020.
45The respondent submits that the CNRs from Dr. Strangway do not identify the accident as the cause of the applicant’s inability to work. I agree with the respondent.
46On October 15, 2019, Dr. Strangway noted that the applicant cannot go to work because she is anxious and stressed. Dr. Strangway notes that the stress is connected to the applicant’s home life. There is no mention of the accident in relation to the applicant’s stress and anxiety. As part of this CNR, Dr. Strangway issued a note to the applicant’s employer that the applicant is to remain off work until March 23, 2020 for “medical reasons”.
47The respondent submits that this note references the first visit of the applicant with her family physician since the accident and that the accident-related injuries are not mentioned. In fact, the Dr. Strangway specifically connects the applicant’s depression and anxiety to causes which are not related to the accident.
48I agree with the respondent. The accident is referenced briefly in the first line of the note. However, there is no mention of any injuries sustained in the accident. The applicant’s depression is contextualized around her family situation and the note for her employer simply states that she cannot work due to undefined medical reasons. These notes do not indicate the essential tasks of the applicant’s employment or how she is unable to perform them due to injuries sustained in the accident, which is the test she must meet for entitlement to an IRB.
49On March 9, 2020, Dr. Strangway notes that the applicant is doing much better than she was last summer, that she has a boyfriend and has enrolled at Georgian College. However, Dr. Strangway notes that stress is being caused by her unpredictable housing situation.
50Again, this note does not reference the essential tasks of the applicant’s employment or how injuries sustained in the accident keep her from completing those tasks.
51The respondent submits as evidence s. 44 reports of Dr. J Stewart, physician, and Dr. P Robinson, psychologist, as further evidence that the applicant is not entitled to an IRB.
52Dr. Stewart assessed the applicant on June 25, 2021. His opinion is that the clinical evidence shows that the applicant does not suffer from a substantial inability to perform the essential tasks of her employment as a result of the accident from a musculoskeletal perspective.
53Dr. Robinson assessed the applicant on January 6, 2022. His opinion is that there is no clear evidence of a psychologically-based disability that would result in the substantial inability of the applicant to perform the essential tasks of her employment.
54As the applicant has not demonstrated the essential tasks of her employment and how she is unable to substantially complete those tasks due to injuries sustained in the accident, I find that she is not entitled to an IRB.
The applicant’s injuries fall within the MIG
55I find that the applicant remains within the MIG.
56An 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.
57The applicant submits that she had pre-existing major depression and fibromyalgia documented by a medical professional. She specifically cites Dr. Stewart’s s.44 report which states that the applicant’s pre-accident fibromyalgia was temporarily exacerbated by the accident.
58The respondent agrees that there are documented pre-existing conditions. However, the respondent submits that there has been no medical evidence adduced that show these pre-existing conditions prevent her from achieving maximal medical recovery if kept within the MIG, which is the test the applicant must meet to warrant removal from the MIG under s. 18(2).
59Further, the respondent submits that Dr. Stewart, in his s.44 assessment report, found that the applicant had achieved maximal medical recovery from her accident related physical injuries.
60I agree with the respondent. While it is clear from the medical evidence that the applicant has pre-existing conditions that may have been exacerbated, that is not the test required for removal under s. 18(2). Section 18(2) requires compelling medical evidence that the pre-existing condition precludes maximal medical recovery if the applicant is kept within the MIG.
61On this point, the applicant has only offered written submissions in support. Submissions are not evidence and the applicant has not adduced any medical evidence to show that the applicant could not achieve maximal medical recovery if kept within the MIG as a result of her pre-existing condition.
62Therefore, I find that the applicant has not demonstrated a pre-existing condition which warrants removal from the MIG under s. 18(2).
The applicant is not entitled to physiotherapy services
The denial is compliant with s. 38(8) of the Schedule
63I find the denial is compliant with s. 38(8).
64Section 38(8) 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 section 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 a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
65The applicant submits that the denial issued by the respondent did not comply with s. 38(8) of the Schedule as the denial is vague and does not provide medical reasons.
66The denial letter notes that “We have been provided with clinical notes and records from Dr. Strangway that you do not have a pre-existing medical condition documented by a health practitioner before the accident, that will prevent you from achieving maximal recovery, therefore your claim is restricted to the minor injury monetary limit of $3,500.”
67The denial letter also states that the respondent had compared the information it had on file to the definition of “minor injury” (a medical definition) as defined in the Schedule and had determined that the applicant’s injuries fit within the definition. It also determined that the MIG applied to the applicant’s claim and that the treatment plans were not reasonable or necessary. I find that the respondent provided a medical reason for the denial, in compliance with s. 38(8).
68An adjuster’s log note dated August 31, 2020 indicates the $3,500.00 available under the Minor Injury Guideline has been exhausted.
69Therefore, the denial is valid, as it references that the applicant’s injuries are minor in nature and the Minor Injury Guideline limits apply. As these limits have been exhausted and the applicant has not demonstrated that removal from the MIG is warranted, I find that the applicant is not entitled to the disputed treatment plan.
It is not necessary to analyze the disputed treatment plans
70Having determined that the applicant remains within the MIG, and the MIG limits have been exhausted, an analysis of the reasonableness and necessity of the disputed treatment plans is not required.
Interest
71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits were withheld, there is no entitlement to interest.
Award
72The 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.
73As no benefits have been improperly withheld or delayed, there is no basis to grant an award.
ORDER
74I find that the applicant remains within the MIG, is not entitled to an IRB, the treatment plan for physiotherapy, an award under s. 10 of Reg 664 or interest.
75This application is dismissed.
Released: February 12, 2026
__________________________
Julian DiBattista
Vice-Chair