Category: Late Application

M.O. v. Jevco Insurance Company (19-003520)

The minor claimant was involved in an accident in 2002. Only in 2016 did the claimant apply for accident benefits when he retained his current counsel (his former counsel sent a tort action letter to the insurer in 2014, but did not make an accident benefits claim.) Around three months after the AB application, the insurer responded requesting further information and an explanation for the delay. The claimant’s reasons for delay were that he was six years old when he was injured and that no one from the insurer had written to him or his parents to explain accident benefits coverage. The insurer denied the application as being made outside of the time limits without reasonable explanation. A preliminary issue hearing took place addressing the late application defence. Adjudicator Boyce concluded that the claimant was permitted to proceed with his application for accident benefits. He was critical of the insurer’s failure to notify the claimant of accident benefits after receiving the notice of tort action. He accepted that the claimant’s status as a minor at the time of the accident and the severe injuries he suffered made the reason for delay credible and reasonable. Further, Adjudicator Boyce noted that the claimant and his parents were recent immigrants with no knowledge of the insurance system or legal system in Ontario. Finally, he found limited prejudice to the insurer and noted the extensive medical documentation that existed to allow the insurer to obtain accurate information and effects of the accident on the claimant.

C. V. D. W v. Heartland Farm Mutual Inc. (19-001892)

This preliminary issue hearing was brought to determine whether the claimant’s application for IRBs and attendant care benefits was statute-barred under s. 55 of the Schedule because it was filed outside of the time limits under s. 32 of the Schedule. Adjudicator Ferguson found that the claimant’s application was barred, as she did not submit the application within 30 days of receipt of the application forms from the insurer, and there was no reasonable explanation for the delay in filing. He found that the claimant’s explanation that she was unable to complete the forms because they were not received, or alternatively that they were not understood, was not credible or believable.

Applicant v. Pafco Insurance Company (18-011583)

The claimant was involved in an accident in 1997. He applied to the LAT to dispute entitlement to IRBs, medical benefits, and a catastrophic impairment. The insurer argued that the claimant never submitted an OCF-1 and did not have a reasonable excuse for the delay. Adjudicator Kepman rejected the claimant’s arguments that he was not provided with the correct forms and that the insurer had not communicated with him around the time of the accident. She dismissed the claim, holding that the Tribunal could not adjudicate a dispute because the claimant never applied for the disputed benefits. She also would have held that the claimant failed to meet the limitation period.

I.G. v. Security National Insurance Company (19-000292)

The claimant sought entitlement to NEBs, ACBs, and various medical benefits. The insurer argued that the claimant failed to notify it of the circumstances giving rise to the claims, and failed to submit an application in the time prescribed. Adjudicator Boyce permitted the claim to proceed despite the late application. He accepted that the claimant believed her injuries would heal, but instead became progressively worse. He also noted that the insurer had been adjusting the claim for a number of year prior to the LAT application, and to argue that it was prejudiced appeared disingenuous. Adjudicator Boyce did, however, bar the claim for ACBs based on the claimant’s failure to submit a Form 1 during the first 104 weeks of the claim.

S.P. v. Gore Mutual Insurance Company (17-003686)

The claimant applied for accident benefits one year after an accident. She sought entitlement to a treatment plan for physical therapy. The insurer denied the claim and argued that the claimant was barred from pursuing accident benefits due to her late application. Adjudicator Msosa held that the claimant provided a reasonable explanation for the late application. The claimant had divorced from her husband and she did not receive the claims materials sent to her by the insurer. She also stated that she believed that her symptoms would resolve, but when they didn’t, she sought physical therapy. Adjudicator Msosa also found the physical therapy to be reasonable and necessary for the claimant’s ongoing pain.

F.S. v. Travelers (18-000582)

The insurer argued that the claimant was barred from proceeding with the LAT dispute in accordance with section 55. Adjudicator Ferguson disagreed. He held that the claimant had notified the insurer of the accident within a few days and of his intention to claim benefits. An OCF-1 was filed within 30 days of the accident. Although the first treatment plans were filed about two years after the accident, the SABS did not bar the claimant from pursuing treatment at such a late date provided the OCF-1 had already been submitted.

N.F. v. Aviva Insurance Canada (17-000456)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s failure to include a police report was not fatal to his application to the Motor Vehicle Accident Claims Fund. Executive Chair Lamoureux upheld the Tribunal’s decision. Despite an application being incomplete, section 32 triggered the insurer’s responsibility to determine whether a benefit was payable. Executive Chair Lamoureux referred to legislation and jurisprudence regarding priority disputes when concluding that applications could be considered complete if they were functionally adequate for their legislated purpose. Executive Chair Lamoureux further held that the insurer was precluded from taking the position that the MIG applied and that the disputed treatment plans were automatically payable. However, the claimant’s application for NEBs was dismissed for a lack of evidence establishing entitlement.

Applicant v. Unifund Assurance Company (17-004690)

The claimant first applied for accident benefits five and a half years after the accident. The insurer did not indicate that the claim was being denied due to its lateness. Once a LAT application was filed, the insurer argued that the claimant was not entitled to claim accident benefits because of the delay in application. Adjudicator Kershaw held that the insurer could not rely upon the late application argument because it had not communicated that position to the claimant from the time she first applied. In terms of the benefits in dispute, the claimant was removed from the MIG due to non-compliance with section 38, and a physio treatment plan was awarded. A psychological treatment plan was denied because the claimant provided no evidence of ongoing psychological injury.

Applicant v. Western Assurance (17-005066)

The insurer raised two preliminary issues in advance of a hearing. The first issue was whether the claimant was prevented from appealing the insurer’s refusal to pay a number of claims because she failed to commence her appeal within two years of the date her claims for benefits was denied. Adjudicator Ferguson held that the claimant was prevented from appealing one claim but that the remaining four at issue could proceed. The parties agreed that the claimant’s appeal was filed more than two years after the dates that the insurer notified her of its refusal to pay the disputed benefits; however all but one of the denials failed to provide the claimant clear and unequivocal notice that it denied her claims and why. The second issue was whether the claimant was prevented from appealing two specific claims because she failed to submit those claims to the insurer within the time limits prescribed by the Schedule. Adjudicator Ferguson held that the claimant was prevented from appealing both denials at issue. Adjudicator Ferguson rejected the claimant’s explanations for failing to comply with the s. 32 timelines for making claims for lack of credibility.

G.A.E. v. Aviva Insurance Canada (17-000317)

The claimant sought entitlement to a number of medical benefits. In addition to a MIG position, the insurer asserted that the claimant was barred from bringing a claim as notice to claim accident benefits was not provided within seven days (or reasonably thereafter) of the MVA, pursuant to sections 32 and 55. Adjudicator S.F. Mather reviewed the circumstances leading up to the claimant providing an application for accident benefits and determined that the claimant gave adequate notice to the insurer “as soon as practicable in the circumstance.” The claims were heard on the merits, and Adjudicator Mather determined that the Notice letters of the insurer were insufficient on several grounds. Accordingly, the insurer was barred from taking a MIG position. Each treatment plan was reviewed on the merits and half, mostly dealing with physical therapy, were considered reasonable and necessary. Those treatment plans were found payable, while the remaining claims were dismissed as either being not reasonable or a duplication.