Citation: Kozak v. Definity Insurance Company, 2026 ONLAT 25-000959/AABS

Licence Appeal Tribunal File Number: 25-000959/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:

Mikael Kozak

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Leila Shimi, Counsel

For the Respondent:

Nicholas Maida, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mikael Kozak, the applicant, was involved in an automobile accident on August 10, 2023, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issues in dispute are:

1. Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?

2. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

1. 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?

2. Is the applicant entitled to $2,010.00 for Dental Services, proposed by Thornhill Endodontics in a claim form (“OCF-6”) dated November 15, 2024?

3. Is the applicant entitled to $2,200.00 for Chiropractic Services, proposed by Myo Health Rehab and Wellness Centre in an OCF-23 dated May 15, 2024?

4. Is the applicant entitled to $3,101.00 for Dental Services, proposed by Dr. Altman's Dentistry in an OCF-6 dated January 2, 2025?

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 its written hearing submissions, the respondent clarified that despite being identified as treatment plans (“OCF-18s”) in the Case Conference Report and Order (“CCRO”), the issues in dispute related to claim forms (“OCF-6s”) and a treatment and confirmation form (“OCF-23”).

RESULT

5On the preliminary issues, I find that the applicant is not statute-barred from proceeding with the substantive issues in dispute.

6On the substantive issues, I find that:

i. The applicant is removed from the MIG due to an accident-related head injury;

ii. The applicant is not entitled to payment of the OCF-6 expenses;

iii. The applicant is entitled to payment of the OCF-23, plus interest.

iv. The respondent is not liable to pay an award.

preliminary issues

Law

7Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.

8Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, if applicable (s. 32(2)). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

9Section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

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

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

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

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

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

10Additionally, pursuant to Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), an interpretation of s. 32(1) must recognize the reality that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident. Hussein provides that the insurer has a positive obligation to inquire and assist an insured person with their application for accident benefits and affirms that insurers cannot simply rely on the insured person’s inaction to determine that no benefits will be claimed.

11Pursuant to s. 55(1)1 of the Schedule, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to the benefit or have not submitted an application for benefits within the times set out in the Schedule.

Parties’ positions

12In its written hearing submissions, the respondent concedes that the applicant was compliant with s. 32(1) of the Schedule, in that he notified the respondent of his intention to apply for accident benefits within seven days after the circumstances arose. Therefore, the first preliminary issue is no longer in dispute. However, the respondent argues that the applicant is non-compliant with s. 32(5) of the Schedule, in that he did not submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms. The respondent further submits that the applicant does not have a reasonable explanation for the delay.

[13]

13The respondent submits that the application forms were emailed to the applicant on December 14, 2023, with the explanation that he had 30 days to complete the OCF-1, and that if the forms were not completed in this time, his file would be closed. The respondent argues that the applicant did not provide the completed OCF-1 within 30 days, but instead, provided an incomplete OCF-1 on March 19, 2024. That day the respondent sent a letter advising the applicant that Part 8 had not been completed and requested a completed application by April 3, 2024. The respondent argues that Part 8 has not been completed by the applicant to date.

14The respondent further argues that the applicant does not have a reasonable explanation for the delay. It argues that the applicant has provided conflicting explanations that were self-serving and not credible. Namely, he reported to the adjuster on January 23, 2024, that he was “very busy”. But in his examination under oath (“EUO”) on October 24, 2024, the applicant stated that he had wanted the assistance of legal counsel.

15The applicant does not dispute that he returned the OCF-1 form outside of the 30-day time limit in s. 32(5). However, he argues that he has a reasonable explanation for the delay. The applicant submits that he did not understand the urgency or legal consequences if the application was not returned within the 30-day time limit. He argues that the correspondence from the respondent was not clear as to the consequences of not complying with the 30-day limit, and that he was in a compromised state due to his accident-related impairments. The applicant submits that the respondent has not alleged any material prejudice from the delay, but that he would suffer significant hardship if his claim was not permitted to move forward.

Does the applicant have a reasonable explanation for his delay in submitting his OCF-1?

16I find that the applicant has established a reasonable explanation for his delay in submitting the OCF-1.

17Although the respondent initially sent the application package to the applicant on December 14, 2023, and the 30 day period would have expired on January 13, 2024, I agree with the applicant that the respondent’s subsequent interactions with the applicant could have created confusion as to the legal consequences of failing to comply with the 30 day time limit.

18When the applicant did not return the completed application within the 30 day time limit, the adjuster telephoned the applicant on January 23, 2024. In the adjuster’s log note entry dated January 23, 2024, the adjuster noted that she had advised that 30 days had passed, and the applicant had stated that “in the next few weeks we would hear back. I mentioned I would close the file for now and if in the future we receive something, we will re-open it”. In my view, this communicated to the applicant that he could submit a late application to “re-open” his claim.

19After the applicant submitted his signed application on March 12, 2024, the respondent sent a letter dated March 19, 2024, where it noted that Part 8 of the form still needed to be completed, and it requested the missing information by April 3, 2024. However, the letter did not state that the applicant’s claim would be barred if this information was not provided. Rather, the letter stated that “we’re not required to pay a benefit until we receive a complete application”.

20On April 22, 2024, the respondent sent a follow-up letter noting that it had not received a revised OCF-1 with Part 8 completed. However, this letter did not state that the applicant was non-compliant with the 30-day time limit in s. 32(5). Rather, it stated that the OCF-1 had been received on March 12, 2024, roughly seven months post-accident, and that a reasonable explanation was required for the delay in reporting his injuries and notifying the respondent of an injury claim. However, this relates to non-compliance with s. 32(1) of the Schedule, which the respondent concedes it is not disputing at this hearing. Under the “Action Required on Your Part” section of the letter, the respondent lists documents it requires pursuant to s. 33, in order to determine whether the applicant was entitled to receive accident benefits. A fully completed OCF-1 is not listed as one of those documents. Further, the letter does not state that failing to complete Part 8 of the OCF-1 will lead to the applicant’s claim being barred.

21Accordingly, I find that although the applicant did not return the completed OCF-1 within 30 days after he received the form on December 13, 2024, his explanation that he did not understand the consequences of not complying with the time limit is both credible and reasonable. Particularly given the messaging the respondent provided in the intervening months, in stating that it would “re-open” the closed file if a late application was received, or that it would not pay a benefit until a completed application was received. In my view, these statements did not convey to the applicant that his entire claim would be barred permanently, if he did not provide a revised OCF-1.

22I find that the applicant has provided a reasonable explanation pursuant to s. 34 of the Schedule for his failure to comply with the time limit in s. 32(5). Accordingly, the applicant is not barred from proceeding with the substantive issues in dispute.

substantive issues

Minor Injury Guideline

23Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

24An insured person 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. 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 he should be removed from the MIG due to his dental fractures and his concussion/head injury.

The applicant is removed from the MIG due to his head injury

26I find that the applicant has met his onus to prove, on a balance of probabilities, that he sustained a head injury as a result of the accident that warrants removal from the MIG.

27The hospital records from the day of the accident reveal that the applicant reported rear-ending another vehicle while travelling at 30 km an hour, that his airbags did not deploy and that his head hit the windshield. He reported headaches in the front and back of his head, that he “felt stars” in his vision for 5-10 minutes afterwards, with no vision changes. The emergency report diagnosis was “head injury, no indication for head CT at present”. The applicant was advised to take Tylenol for the pain, a concussion printout was provided, and he was advised to return to the hospital if he had a worsening headache, loss of consciousness, vomiting or neurological deficits. The hospital records also note that the applicant had a picture of the cracked windshield.

28The respondent argues that these hospital records are not sufficient evidence of a concussion to warrant removal from the MIG. It argues that the records do not expressly diagnose a concussion, that a head CT scan was not ordered, that the applicant had not been assessed by a neurologist and no referral to a neurologist had been made by a family doctor. I am not persuaded by the respondent’s arguments.

29I find that the hospital records are persuasive evidence, on a balance of probabilities, that the applicant sustained a head injury as a result of the accident. Although the respondent points to the fact that the term “concussion” was not noted in the hospital records, I find that an emergency room diagnosis of “head injury” clearly falls outside the definition of a minor injury, regardless of whether the term “concussion” is expressly used. Section 3(1) of the Schedule and s. 2 of the MIG identify minor injuries as sprains, strains, whiplash associated disorders, contusions, abrasions, lacerations and subluxations. In my view, a head injury is not included in this definition. The hospital records also note post-concussive symptoms such as headaches and “seeing stars”. I find that these reported symptoms support the diagnosis of a head injury.

30I further am not persuaded by the respondent’s argument that no referral to a neurologist had been made and that a head CT scan had not been ordered. The respondent has not directed me to any binding caselaw which holds that only a neurologist can diagnose a concussion or head injury, or that a CT scan is required to corroborate such a diagnosis.

31Accordingly, I find that the applicant has met his onus to prove, on a balance of probabilities, that he should be removed from the MIG due to his head injury.

The applicant is not entitled to the two OCF-6s for dental services dated January 2, 2025, and November 15, 2024

32Although these issues in dispute were identified as treatment plans/OCF-18s in the CCRO, the parties’ submissions clarified that these expenses were submitted on OCF-6 claim forms.

33The applicant submits he sustained fractures to two of his teeth when his head hit the windshield in the accident. In December 2023, the applicant had a dental assessment and had restorative treatment to his teeth, including a root canal. He argues that these were reasonable and necessary expenses. From his submissions, the applicant also appears to be arguing that the respondent provided insufficient reasons for its denials of the expense forms. He submits that the letters dated May 23, 2024, and November 28, 2024 simply referred to the applicant’s failure to notify the respondent within the prescribed time limits.

34The respondent submits that the dental expenses are not reasonable and necessary, as the applicant has not established that the dental issues arose as a result of the accident. It argues that there is no mention of tooth fractures in the hospital records, and that the clinical notes and records from the applicant’s dentist do not link the dental issues to the accident. Rather it was noted that the applicant had thought that his tooth had “a crack but ended up being a deep cavity”.

35The respondent further argues that neither OCF-6 expense form is payable as the dental expenses were incurred prior to the submission of an OCF-18 in contravention of s. 38(2) of the Schedule. The applicant did not provide reply submissions, and so, did not address the respondent’s s. 38(2) argument.

36I find that the applicant has not established that the dental expenses are payable, as he had incurred the services in dispute before a treatment plan was submitted. I agree with the respondent that s. 38(2) applies.

37As per s. 38(2) of the Schedule, an insurer is not liable to pay an expense in relation to a medical benefit that the insured incurred before submitting a treatment plan compliant with s. 38(3), unless the expenses fall under one of the exceptions listed in s. 38(2). The respondent has led evidence that all of these expenses were incurred before an OCF-18 had been submitted. The applicant has not provided any submissions or directed me to evidence that any of the s. 38(2) exceptions apply in this case. Without specific submissions from the applicant on this point, I find that the applicant has not established that the expenses claimed on the two OCF-6 forms are payable.

The applicant is entitled to payment of the chiropractic services listed on the OCF-23

38Although the CCRO listed the $2,200.00 of chiropractic services as being submitted on an OCF-18, the respondent clarified that this treatment was submitted on an OCF-23 treatment confirmation form.

39The respondent argues that the OCF-23 is not payable, since the applicant has not established that this form was submitted within the timelines set out in the MIG, as required by s. 40(7) of the Schedule.

40Section 40(7) of the Schedule provides that: “if goods or services available under the Minor Injury Guideline are not provided within the times specified in that Guideline, the insured person shall submit a treatment and assessment plan under section 38 if he or she wishes to obtain medical or rehabilitation benefits to which the Minor Injury Guideline would otherwise apply.”

41The respondent submits that Part 8 of the MIG states that the treatment phase under the MIG will not typically exceed 12 weeks following the initial visit. Since the OCF-23 was dated May 15, 2024, the respondent argues that treatment under the MIG should have been provided within 12 weeks, or no later than August 7, 2024. The respondent argues that the applicant has not provided evidence or submissions to show that he incurred the chiropractic treatment by August 7, 2024, accordingly, s. 40(7) holds that the applicant should have instead submitted an OCF-18 for any treatment that he would have been entitled to under the MIG. The applicant did not provide reply submissions or address the respondent’s s. 40(7) argument.

42I am not persuaded by the respondent’s argument that the applicant is not entitled to the submitted OCF-23, since the treatment was not incurred “within the timelines of the MIG”. The purpose of the MIG and OCF-23 is to reduce the barriers to funding, enabling the applicant to engage in treatment without waiting for funding to be approved. However, in its May 23, 2024 correspondence to the applicant after receiving the OCF-23, the respondent did not approve the treatment requested in the OCF-23. Rather, it stated that it was “unable to approve any treatment for your claim”, since it had not yet received the requested documents or a reasonable explanation for the applicant’s delay in reporting his injuries.

43Given that the respondent did not approve the OCF-23, I find that it is disingenuous for the respondent to now be arguing that the applicant should have incurred the treatment set out in the OCF-23 within 12 weeks. Moreover, I note that in the May 23, 2024 EOB, the respondent did not suggest to the applicant that he submit an OCF-18 for chiropractic treatment. Finally, I note that while the MIG states that treatment under the MIG “will not typically exceed twelve weeks in duration following the date of the initial visit”, I do not read that provision as stating that MIG treatment “must” be completed within the twelve week period.

44The respondent has not provided any submissions or directed me to evidence that it has approved any funding under the MIG. To the extent that the respondent has not already approved an OCF-23 for treatment under the MIG, I find that the applicant is entitled to payment of $2,200.00 for chiropractic services proposed in the OCF-23 dated May 15, 2024.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with s. 51 on the OCF-23.

Award

46The 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. The applicant submits that the respondent has acted in bad faith and has taken an adversarial approach to his claim. He argues that the respondent has unreasonably denied access to needed treatment simply on the basis of purported non-compliance with limitation periods or s. 33 non-compliance.

47I find that the applicant has not established that an award is payable. The respondent took the position that the applicant was not entitled to accident benefits, as he did not comply with the timelines set out in s. 32 of the Schedule. While I have found that the applicant had a reasonable explanation for the delay, it is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the applicant has not directed me to any behavior on the part of the respondent that reaches that high standard.

ORDER

48On the preliminary issues, I find that the applicant is not statute-barred from proceeding with the substantive issues in dispute.

49On the substantive issues, I find that:

i. The applicant is removed from the MIG due to an accident-related head injury;

ii. The applicant is not entitled to payment of the OCF-6 expenses;

iii. The applicant is entitled to payment of the OCF-23, plus interest.

iv. The respondent is not liable to pay an award.