Citation: Dunlap v. Gore Mutual Insurance Company, 2026 ONLAT 24-005819/AABS

Licence Appeal Tribunal File Number: 24-005819/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:

Aja Dunlap

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Neisha Moses, Paralegal

For the Respondent:

Arthur Camporese, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Aja Dunlap, the applicant, was involved in an automobile accident on September 26, 2022, 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, Gore Mutual Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference held on February 12, 2025, two separate applications with file numbers 24-012117/AABS and 24-005819/AABS were combined, and the Tribunal also ordered the preliminary issue to be heard together with the substantive issues.

PRELIMINARY ISSUE

3The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with her claim for benefits because she failed to submit information that was requested pursuant to section 32(5) of the Schedule?

SUBSTANTIVE ISSUES

4The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? The parties agree the MIG limits have not been exhausted.

ii. Is the applicant entitled to the treatment/OCF-18 (“plan”) proposed by On-Site Medical, as follows:

a. $3,876.32 for chiropractic services, in a plan dated March 3, 2023;

b. $3,199.46 for chiropractic services, in a plan dated January 2, 2024;

c. $2,925.17 for chiropractic services, in a plan dated September 14, 2023;

d. $2,650.88 for chiropractic services, in a plan dated March 1, 2024;

e. $1,851.63 for a home site assessment, in a plan dated March 16, 2023;

f. $2,460.00 for a TMJ assessment, in a plan dated May 15, 2023; and

g. $2,460.00 for a psychological assessment, in a plan dated June 14, 2023?

iii. Is the applicant entitled to $1,933.45 for massage therapy and cannabis submitted on a claim form (OCF-6) dated June 20, 2023?

iv. Is the applicant entitled to $152.48 for cannabis, submitted on a claim form (OCF-6) dated June 22, 2023?

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

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

Preliminary Issue – is the applicant barred from proceeding?

5I find the applicant is not barred from proceeding to a hearing for the substantive issues in dispute.

Substantive Issues

6On the substantive issues I find:

i. The applicant has not met her burden of demonstrating that her injuries are not predominantly minor as defined in section 3 of the Schedule and she is therefore subject to treatment within the $3,500.00 MIG limit.

ii. As the applicant remains within the MIG, it is not necessary to consider if the treatment plans and OCF-6s in dispute are reasonable and necessary.

7As none of the benefits in dispute is owing, the applicant is not entitled to interest.

8The respondent is not liable to pay an award.

Preliminary issue ANALYSIS

Is the applicant barred from proceeding with her application to the Tribunal?

9Section 32(5) of the Schedule requires an insured person to submit a completed and signed application for benefits to the insurer within 30 days of receiving the application forms.

10Section 55(1) provides that an applicant shall not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Schedule. However, under section 34, “A person’s failure to comply with a time limit set out in this Part [which includes section 32] does not disentitle the person to a benefit if the person has a reasonable explanation.”

11The onus is on the applicant to establish a “reasonable explanation” for the delay. The interpretation of what constitutes a “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (“K.H.”). The guiding principles are summarized as follows:

i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

ii. The onus is on the insured person to establish a “reasonable explanation”.

iii. Ignorance of the law alone is not a “reasonable explanation”.

iv. The test for a “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.

v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

vi. As assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

12The respondent mailed the applicant an accident benefits application package in a letter dated October 4, 2022 with a deadline to submit the completed and signed forms by November 3, 2022. The respondent then followed up with the applicant in a letter dated November 3, 2022 and explained the forms are required in order to determine entitlement to specific accident benefits. The correspondence states, “If we have not received any application from you within the next 30 days, we will presume you do not intend to make a claim for benefits and close your accident benefits file.” The respondent closed the file on November 26, 2022.

13The applicant submits that following the accident she was in and out of the hospital and she was admitted for addiction and mental health at various times for extended periods from September 26, 2022 and May 5, 2023, including admissions at the Centre for Addictions and Mental Health (“CAMH”), Mount Sinai Hospital, and The Renascent Graham Munro Centre for Women (“the Renascent”). The applicant submits the “reasonable explanation” for the delay in her application is because she was actively seeking and receiving medical care for her accident-related injuries and her pre-existing conditions.

14The respondent submits the applicant has not met her onus of establishing a credible explanation. The respondent argues mental health and addiction issues are insufficient explanation for delay and relies on Tucker v. Economical Insurance Company, 2024 CanLII 70376 (ON LAT). According to the respondent, the applicant was released to her home where she was managing overall and returned to driving. The respondent relies on the explanation letter dated April 4, 2023, the clinical notes and records (“CNRs”) of Dr. Vincent Utsalo, physician, dated September 29, 2022, the CNRs of CAMH dated October 7, 2022, the CNRs of Mount Sinai Hospital dated September 26, 2022 to August 15, 2024, the CNRs of the Renascent.

15Citing Tucker, the respondent argues that longstanding issues with mental health and addictions have been found to be an insufficient explanation for delay even when paired with mobility issues and when the applicant is able to complete many day-to-day activities. While I am not bound by decisions from my fellow adjudicators, the circumstances in Tucker are distinguished from this case. Here the applicant was actively seeking and participating in treatment for addiction and mental health that removed her from her home for extended periods and required her to be inside a treatment facility focussed exclusively on her addiction recovery.

16Starting with the framework from Horvath and K.H., I find the applicant’s explanation is credible or worthy of belief. I can accept that addiction and mental health, with ongoing relapses that require in-patient facility-based care may impact her ability to complete an application for benefits. For example, her ability to recall and remember may be impacted during this time. Turning to the next stage of the analysis, I find that her explanation is reasonable in the specific circumstances of this case, namely her withdrawal symptoms and recurring in-patient treatment for addiction.

17I accept the medical records show the applicant was experiencing issues with addiction and mental health at the time of and immediately following the accident. Most notably, on September 29, 2022 Dr. Utsalo assessed the applicant with “alcohol abuse/misuse”. Dr. Utsalo’s records demonstrate the applicant was disoriented and uncooperative. I also accept the applicant was suffering withdrawal symptoms as noted in the CNRs of Dr. Utsalo and the discharge notes from CAMH dated October 7, 2022, shortly after the accident. The CAMH CNRs note the applicant was diagnosed with alcohol use disorder, alcoholic fatty liver, cocaine use disorder, other depressive disorder, type 1 diabetes melitus, and tobacco use disorder. Dr. Utsalo also notes on November 21, 2022 the applicant was in withdrawal and demonstrated poor compliance with her instructions from CAMH.

18I accept the applicant was admitted for rehabilitation within days of her accident and she was on prescription medication for alcohol withdrawal at the time of the accident. I also note the respondent contacted the applicant during the time of her rehabilitation treatment and did not contact her after the letter dated November 3, 2022 to advise her that the file had been closed.

19Both parties’ submissions on this issue are silent on the prejudice that would be caused if the applicant is barred from proceeding with her claim for benefits. However, overall, I find the prejudice caused to the applicant greatly outweighs any prejudice facing the respondent.

20In applying the above factors, I accept the applicant’s explanation that she was limited in her response because she was receiving medical care for her alcohol use disorder and withdrawal symptoms, and that her explanation is reasonable given her circumstances.

21Accordingly, I find the applicant has provided a reasonable explanation for the delay in submitting a completed OCF-1 and therefore may proceed with her application to the Tribunal.

Substantive issue analysis

Application of the Minor Injury Guideline

22I find the applicant has not met her onus of proving that her injuries fall outside the definition of a “minor injury” as defined in section 3 of the Schedule and she is therefore subject to treatment within the MIG limit.

23Section 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) defines a “minor injury” 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.”

24The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

25The applicant submits that she has pre-existing medical conditions, namely severe alcohol use disorder, alcohol withdrawal, and depression that prevent her from achieving maximal recovery within the MIG.

26The applicant relies on the CNRs of Dr. Katie Awad, physician, for the period of September 26, 2019 to April 12, 2023; the CNRs from CAMH for the period September 26, 2019 to May 4, 2023; the CNRs of Mount Sinai Hospital from September 26, 2022 to May 3, 2023; the CNRs of Dr. Utsalo, physician, from May 6, 2022 to November 21, 2022.

Does the applicant have pre-existing conditions that prevent maximal recovery?

27I find that the applicant has not met her onus in demonstrating that her pre-existing conditions prevent her from achieving maximal recovery if she is kept within the MIG limit.

28I agree with the applicant’s position that she has been diagnosed with severe alcohol use disorder, alcohol withdrawal, and depression before the accident, as shown in the CNRs of Dr. Utsalo. I also agree that the applicant has complained of substance abuse and withdrawal symptoms both before and after the accident, as noted in the CNRs of Dr. Utsalo, Dr. Awad, the notes from CAMH, and The Renascent. However, I was not directed to compelling evidence from her health care provider that her pre-existing conditions prevent her from achieving maximum medical recovery if she is kept within the MIG limit. Without such evidence, there is no basis for me to find that her pre-existing condition prevents her from achieving maximal medical recovery within the MIG.

29The respondent submits the applicant has not met her onus to demonstrate that her pre-existing conditions or her accident-related injury prevents her from achieving maximal medical recovery within the MIG limits. The respondent relies on the CNRs of Dr. Katie Awad; the CNRs of CAMH; the CNRs of Mount Sinai Hospital; the CNRs of Dr. Utsalo; and the section 44 physiatry report prepared by Dr. Syed Hosseini, physiatrist, dated June 7, 2024.

30I find Dr. Hosseini’s section 44 physiatry report is persuasive because the doctor reviewed the applicant’s medical records and conducted an in-person assessment to determine that her injuries fell within the MIG, despite her pre-existing conditions. I assign weight to the section 44 report because it indicates the applicant has post-accident injuries consistent with those categorized as minor injuries and the applicant has not directed me to compelling medical evidence that meets the test in section 18(2) that she should be removed from the MIG based on her pre-existing conditions.

31I find on a balance of probabilities that the applicant is subject to the MIG.

Are the treatment plans and OCF-6s reasonable and necessary?

32As I find the applicant is not entitled to funding beyond the MIG limit, it is not necessary to determine if the OCF-6s and the treatment plans for chiropractic services, a home site assessment, a TMJ assessment, and a psychological assessment are reasonable and necessary.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

34The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

35The applicant submits the insurer mishandled her claim and prevented her from accessing timely treatment by keeping her within the MIG and failed to support her maximum medical recovery. The applicant argues the insurer made errors in the denial; however, the applicant did not direct me to any particular letter from the insurer.

36The respondent submits there is no basis for an award.

37I find the applicant has not established that the respondent unreasonably withheld or delayed payment of the benefits.

38I find an award is not appropriate. As no benefits have been unreasonably withheld or delayed, no award is payable.

ORDER

39For the reasons outlined above, I find that;

i. The applicant is not barred from proceeding to a hearing for the substantive issues in dispute.

ii. The applicant is subject to the MIG.

iii. As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans and OCF-6s are reasonable and necessary.

40As there are no overdue benefits, the applicant is not entitled to interest.

41The respondent is not liable for an award.

42The application is dismissed.