Licence Appeal Tribunal File Number: 24-002901/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:
Edyta Mas
Applicant
and
Co-operators General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Mehrdad Salehi-Moghaddam, Counsel
For the Respondent:
Eric Grossman, Counsel
Rebecca Brown Grier Greer, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Edyta Mas, the applicant, was involved in an automobile accident on March 8, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
Preliminary Issues:
2The preliminary issues in dispute are:
Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to dispute their denial within the 2-year limitation period?
Is the applicant barred from proceeding with their claim for benefits as they failed to submit an application for the benefit (OCF-3) within the time prescribed in the Schedule?
Substantive issues:
3The substantive issues in dispute 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 limit?
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 5, 2014 to March 7, 2016?
Is the applicant entitled to $1,890.44 for chiropractic services, proposed by MacKenzie Medical Rehab in a treatment plan/OCF-18 (“treatment plan”) submitted February 14, 2020?
Is the applicant entitled to $1,417.70 for chiropractic services, proposed by MacKenzie Medical Rehab in a treatment plan submitted November 9, 2020?
Is the applicant entitled to $2,635.40 for chiropractic services, proposed by MacKenzie Medical Rehab in a treatment plan submitted July 27, 2021?
Is the applicant entitled to $2,266.25 for a chronic pain assessment, proposed by Health Care Specialists Assessments in a treatment plan submitted October 19, 2015?
Is the applicant entitled to $200.00 for completion of a Disability Certificate (“OCF-3”), submitted on an Auto Insurance Standard Invoice (“OCF-21”) on February 27, 2020?
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
4I find that:
The applicant is barred from proceeding with her claim for an NEB because she did not submit an OCF-3 within 104 weeks of the accident in accordance with 12(3)(c) and s.36(3) of the Schedule.
The applicant is barred from proceeding with her claim for the treatment plans in dispute, because the applicant did not dispute their denials within the 2-year limitation period in accordance with s.56 of the Schedule.
The applicant is barred from proceeding with her claim for $200.00 for the completion of an OCF-3, because the applicant did not dispute its denial within the 2-year limitation period in accordance with s. 56 of the Schedule.
As no benefits remain in the application, the application is dismissed.
ANALYSIS
Preliminary issues:
Is the applicant barred from proceeding with her claim for an NEB?
5I find that the applicant is barred from proceeding with her claim for an NEB.
6Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, and s. 12(3)(c) provides that an insurer is not required to pay an NEB for any period more than 104 weeks after the accident.
7The process for an applicant to claim an NEB is set out in s.36. Section 36(2) provides that the applicant must submit a Disability Certificate (“OCF-3”) with their application for a specified benefit under s.32, while s.36(3) provides that an applicant is not entitled to an NEB for any period before a completed OCF-3 is submitted.
8The respondent submits that the applicant should be barred from proceeding with her application for an NEB, because she did not dispute the denial notice within the 2-year limitation period set out in Section 56 of the Schedule. The respondent further submits that the applicant is statute barred from proceeding with her NEB claim because she did not file an OCF-3 within 104 weeks of the accident.
9Although the applicant does not dispute that she filed the OCF-3 on February 22, 2020, which is 6 years after the accident, she makes no submissions with respect to whether her NEB claim is barred as a result of exceeding the 104-week timeframe set out in s.12.
10The applicant submits that she is not barred, because the respondent did not provide the applicant with a valid denial notice in accordance with s. 36(4) of the Schedule to trigger the start of the limitation period, and in the alternative, the applicant requests an extension of the limitation period under Section 7 of the Licence Appeal Tribunal Act (“LAT Act”).
11Even if I were to agree with the applicant that the February 18, 2020 denial notice is not compliant with s. 36(4) I find that the applicant is still statute-barred from proceeding with her application for an NEB because she did not submit the OCF-3 within 104 weeks of the accident in compliance with s.12(3)(c) and s. 36(3).
12The respondent relies on Tribunal decision K.A. v. Intact Insurance Company, 2020 CanLII 94779 (ONLAT) (“K.A.”) and multiple other Tribunal decisions to support its claim that the applicant is barred from proceeding because the applicant did not meet the requirements set out in s.36 and s.12 within the prescribed timeframes.
13I am persuaded by the reasoning in K.A. which follows the binding decision of the Divisional Court in Volpe v. Co-operators Gen. Ins. Co., 2017 ONSC 261. In K.A. the Tribunal held that the language in s.36 and s.12 is compulsory and that s. 36 bars an applicant’s claim in a circumstance where the OCF-3 is submitted after the 104-week NEB eligibility period set out in s.12.
14There is no dispute that the applicant submitted her OCF-3 well outside the 104-week period for NEB eligibility. As such, I find that the applicant is barred from proceeding with her claim for an NEB because she did not submit an OCF-3 within 104 weeks of the accident in accordance with 12(3)(c) and s.36(3) of the Schedule.
Is the applicant barred from proceeding with her claims for the treatment plans in dispute
15I find that the applicant is barred from bringing her claims for the treatment plans in dispute.
16Section 56 of the Schedule states that an application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. In order for s. 56 to be triggered, the respondent must have sent out a valid denial notice.
17The Supreme Court of Canada in Smith v. Co-operators General Insurance Co, 2002 SCC 30 held that 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 the relevant time limits that govern the process.
18The respondent submits that the applicant is statute barred from proceeding with her application for any of the treatment plans in dispute, because all of the denial notices were valid, and the application was filed well outside of the 2-year limitation period set out in s. 56.
19The applicant did not make submissions with respect to the validity of the denial notices, but requests an extension of time under s.7 of the Licence Appeal Tribunal Act (“LAT Act”)
Was $1,890.44 for chiropractic services in a treatment plan dated February 20, 2020 properly denied?
20The treatment plan for $1,890.44 for chiropractic services was dated February 20, 2020, and denied in a letter dated February 28, 2020.
21I find that the February 28, 2020 is not a valid notice because although it provides the MIG as a medical reason, it does not specify the applicant’s injuries, and does not contain specific information about the information the respondent requires. As such, I find that the letter is not sufficiently detailed for an unsophisticated person to make an informed decision whether or not to dispute the denial.
22The respondent provided a subsequent letter on April 27, 2020 which confirmed the denial of the treatment plan, after the applicant had provided medical records to the respondent. I find that the April 27, 2020 letter is a valid denial as it identifies the applicant’s injuries and treatment history, including a subsequent slip and fall accident in 2016, and explains that the respondent has insufficient evidence that the goods and services requested are related to the applicant’s accident-related injuries. Finally, it refers the applicant to information to dispute the denial. I find that the denial notice is a clear and unequivocal denial and provides sufficient information for an unsophisticated person to make an informed decision whether to dispute the denial.
23As a result, I find that the April 27, 2020 denial letter triggers the two year limitation period. As the application was not submitted until March 5, 2024, almost four years later, I find that the application was filed outside the s. 56 limitation period.
Were the treatment plans for chiropractic services dated November 9, 2020 and July 21, 2021 properly denied?
24The applicant submitted two further treatment plans for chiropractic services, the first, dated November 9, 2020, sought $1,417.70 and was denied by the respondent on November 25, 2020, and the second, dated July 21, 2021, sought $2,635.40 and was denied on August 5, 2021.
25I find that the November 25, 2020 and August 15, 2021 denial letters are both valid notices. The letters contain identical language and provide the MIG as a medical reason, and explain that due to the passage of 7 years since the accident, the respondent is unable to determine whether the goods and services requested in the treatment plan are related to the applicant’s accident-related injuries. The letters also explain the exceptions to the MIG, and inform the applicant that the respondent does not have medical evidence that indicates the applicant meets the exceptions and that it is the applicant’s obligation to provide such information.
26Further, the letters inform the applicant of the 2-year limitation period to dispute the denial, and direct her to enclosed information about the dispute resolution process. As a result, I find that both letters are sufficiently clear and detailed for an unsophisticated person to decide whether to dispute the denials.
Was the treatment plan for $2,266.25 for a chronic pain assessment dated October 19, 2015 properly denied?
27The treatment plan for $2,266.25 for a chronic pain assessment was submitted on October 19, 2015 and denied by the respondent on November 2, 2015.
28I find that the November 2, 2015 denial letter is valid, because it is a clear and unequivocal denial. The denial letter explains that the applicant’s soft tissue injuries place her within the MIG and refers the applicant to the respondent’s previous MIG determination in the explanation of benefits, as well as the treatment confirmation form (“OCF-23”) from March 27, 2014, in which the applicant’s previous treatment provider indicated that her injuries fell within the MIG. The letter further advises the applicant of her right to dispute the denial and refers her to information on how to do so.
29For these reasons, I find that the denial notice is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether or not to dispute the denial.
30As a result, I find that the denial notice triggers the 2-year limitation period. As the application was filed on March 5, 2024, more than six years after the limitation period expired, the treatment plan is outside of the 2-year limitation period.
Extension of the Limitation Period
31The applicant did not dispute that she submitted her application outside the s. 56 limitation period, or that the respondent’s denial notices for the treatment plans were valid. Rather, the applicant requests an extension of the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act “(LAT Act”). Section 7 affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. See, Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492.
32The applicant requests that I use my discretion to extend the 2-year limitation period for the treatment plans and lists the Manuel factors. The respondent counters that the applicant has not demonstrated an intention to file an application within the limitation period, that the delays of between 7 months and 6 years after the expiry of the limitation period are excessive, and that an extension would be prejudicial to the respondent.
33The applicant did not make any submissions or lead any evidence to suggest that the applicant intended to appeal the denial of any of the treatment plans within the limitation period, or to explain the delay. Further, the applicant did not provide any submissions with respect to the prejudice to the respondent, nor did the applicant address the merits of the appeal in their submissions.
34For these reasons, I find that the applicant has not provided persuasive evidence for me to exercise my discretion to extend the limitation period for any of the treatment plans in dispute. Therefore, I decline to exercise my discretion under s.7 of the LAT Act.
35Accordingly, the applicant is barred from bringing her applications for the treatment plans in dispute as none were filed within the 2-year limitation period in accordance with s. 56.
Is the applicant barred from bringing her claim for $200.00 for the completion of an OCF-3?
36I find that the applicant is barred from bringing her claim for $200.00 for the completion of an OCF-3 in an OCF-21 submitted on February 27, 2020.
37The respondent submits that the application was outside of the 2-year limitation period under s, 56. The applicant makes no submissions with respect to the OCF-21.
38I find that the denial letter, dated March 26, 2020, is a valid denial, as it is a clear and unequivocal denial. The denial letter explains that the applicant’s 104-week eligibility for an NEB has expired, and that the respondent has determined that the OCF-3 is not payable because it was filed 6 years after the accident. The denial letter provides the applicant with information about her right to dispute the denial, and the process by which to do so. As such, I find that the March 4, 2020 is sufficiently clear and detailed for an unsophisticated person to dispute the denial.
39As a result, I find that the March 26, 2020 denial notice triggers the limitation period. As the application was filed 4 years later on March 5, 2024, I find that the applicant’s claim for $200.00 for the completion of the OCF-3 is outside of the 2-year limitation period under s.56. Therefore, I find that the applicant is barred from bringing her claim for the completion of the OCF-3.
40As the only remaining substantive issue in despite is a determination of whether the applicant’s injuries fall within the Minor Injury Guideline, which cannot be brought as a stand-alone issue, the application must be dismissed.
ORDER
41I find that:
The applicant is barred from proceeding with her claim for an NEB because she did not submit an OCF-3 within 104 weeks of the accident in accordance with 12(3)(c) and s.36(3) of the Schedule.
The applicant is barred from proceeding with her claim for the treatment plans in dispute, because the applicant did not dispute their denials within the 2-year limitation period in accordance with s.56 of the Schedule.
The applicant is barred from proceeding with her claim for payment of $200.00 for the OCF-3, because the applicant did not dispute the denial within the 2-year limitation period in accordance with s. 56 of the Schedule.
As no benefits remain in the application, the application is dismissed.
Released: January 13, 2026
Kathleen Wells
Adjudicator```