Category: Limitation Period

Applicant v. Unica Insurance Inc. (17-007052)

The claimant sought a declaration that she sustained a catastrophic impairment, and sought entitlement to ACBs and medical benefits. The insurer denied all of the claims and argued that the claim for ACBs was time barred. Adjudicator Ferguson held that the claimant did not suffer a catastrophic impairment. He preferred the evidence of the IE assessors over that of the claimant’s assessors because the claimant’s assessors did not conduct any psychological testing, did not discuss the four areas of function, and did not explain how his scores for physical impairments were made. Adjudicator Ferguson held that the claim for ACBs was time barred and that the claimant only had two years from the date the insurer reduced her ACBs entitlement to apply to the LAT. The claims for medical benefits were dismissed because the claimant failed to provide evidence that they were reasonable for her injuries.

Applicant v State Farm Mutual Automobile Insurance Company (17-008613)

The applicant sought payment for IRBs. The respondent argued that the applicant’s claim was time-barred. The applicant submitted an OCF-1 in February 2012. State Farm denied the claim on March 8, 2012. The applicant submitted an OCF-3 in January 2017 after exhausting collateral benefits. State Farm denied the claim and requested additional financial documentation, but did not raise the limitation period issue. After receiving the requested financial documentation in November 2017, State Farm denied the IRB claim due to the limitation period. The applicant filed an application with the LAT in December 2017, over 5 years and 8 months from the first IRB denial. Adjudicator Sewrattan held that the applicant’s claim was time-barred and the applicant was not entitled to costs because the conduct complained about occurred outside of the LAT’s proceeding. The adjudicator held that the applicant made a claim when she submitted an application for ABs in February 2012, not when she first submitted a disability certificate in January 2017. The adjudicator further held that State Farm provided a clear and unequivocal denial of the applicant’s IRB claim and advised the applicant of her dispute resolution options on March 8, 2012. As such, the limitation period was March 8, 2014. The adjudicator rejected the applicant’s argument that State Farm was estopped from relying on the limitation period due to entertaining her IRB claim through 2017. The adjudicator held that tis conduct did not prejudice the applicant’s ability to comply with the limitation period.

Applicant v. Guarantee Company of North America (17-006956)

The claimant sought entitlement to NEBs and funding for catastrophic impairment assessments. The insurer argued that the limitation period barred the claim for NEBs, and that the claimed catastrophic impairment assessments were not reasonable and necessary. Adjudicator Flude agreed with the insurer. He held that the claim for NEBs was barred by the limitation period and that section 7 of the Licence Appeal Tribunal Act did not warrant allowing the dispute to proceed. He also held that the catastrophic impairment assessments were not payable because there was no reasonable basis to conduct an assessment to determine if the claimant suffered such an impairment. Surveillance showed the claimant with normal functionality, and assessment of the claimant revealed no accident-related physical or psychological impairment.

A.C. v. Economical Mutual Insurance Company (17-005685)

The claimant sought entitlement to NEBs. The insurer argued that the claimant failed to dispute entitlement within two years of the denial. The claimant conceded that he had not disputed entitlement within two years, but argued that his claim was not discoverable during the period. Adjudicator Go held that the principles of discoverability did not apply to SABS claims, and that the two year limitation period began to run from the date of the insurer’s denial. She also held that section 7 of the LAT Act did not support delaying the limitation period because there was no evidence that the claimant was incapacitated or unable to give instructions to counsel to dispute NEB entitlement within two years of the denial.

E.A. v. Aviva Insurance Company of Canada (17-005601)

The claimant sought entitlement to various medical benefits. The insurer argued that the claimant had applied more than two years after the relevant denials. The claimant conceded that two years had passed, but relied upon section 7 of the LAT Act arguing that the insurer had delayed providing copies of the denials to the new counsel. Adjudicator Norris rejected the claimant’s position. Although the insurer was late in providing copies of the denials to the claimant’s new counsel, the insurer had provided the original denials to the claimant and the claimant’s then-counsel.

M.S. v. Unifund Assurance Company (17-003419)

A preliminary issue hearing was held to determine whether the claimant was precluded from proceeding with a claim for income replacement benefits for her failure to dispute the denial of the benefit within the two year limitation period. The claimant argued that the limitation period did not run from the date of the insurer’s purported denial for two reasons: (1) the insurer violated s. 37 of the Schedule by failing to request a new OCF-3 prior to notifying the claimant that it required her to attend insurer assessments in a letter predating the denial; and (2) the denial of the IRB was not clear and unequivocal because the insurer subsequently sent the claimant a letter requesting further information relating to income and employment. Adjudicator Daoud rejected both arguments and held that the claimant was statute barred from disputing the denial of the income replacement benefit.

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.

Applicant v. Royal and Sun Alliance (17-003732)

The minor claimant sought entitlement to NEBs, and four treatment plans. The insurer argued that the claim for NEBs was time barred, and that the claimant’s injuries fell within the MIG. Adjudicator Hines held that the two year limitation period did not apply to the minor claimant until she hit the age of majority. She also held that the claimant’s mother was not deemed a litigation guardian by virtue of filling out SABS forms for the claimant. In terms of NEB entitlement, Adjudicator Hines held that the claimant failed to prove a substantial change in her life following the accident, and raised concerns about many inconsistencies in the claimant’s reporting. In terms of the medical benefits, Adjudicator Hines concluded that the claimant’s injuries were minor in nature, and that the treatment plans were therefore not payable.

K.G. v. Certas Direct Insurance Company (16-003633)

The insurer argued that the claimant failed to apply to the LAT within two years of the refusal to pay in accordance with section 56 of the SABS. The claimant argued the insurer’s explanation of benefits (EOB) did not constitute a denial in compliance with the SABS. Adjudicator Watt held the EOB did not constitute a denial and that the claimant could proceed with her claim. There was no evidence that the insurer provided the claimant the information and forms required in response to her application for benefits. Stating in the EOB that the claimant “did not qualify” for a benefit does not amount to refusing to pay a benefit that has been claimed.

W.C.C. v. Allstate Canada (17-001363)

The claimant sought entitlement to non-earner benefits, which had been denied by the respondent on May 22, 2013, and entitlement to two treatment plans. Adjudicator Daoud dismissed all the claims, finding that the claimant was limitation barred from disputing the denial of non-earner benefits and that the claimant had not proven that the disputed treatment plans were reasonable and necessary. The claimant argued that the two-year limitation period should be extended or should not apply for a number reasons, which were all rejected by Adjudicator Daoud. Adjudicator Daoud held that (a) an insurer’s denial of a benefit, even if it is legally incorrect, will trigger the two-year limitation clock; (b) the 26-week waiting period for NEBs is not in reference to entitlement but to when NEBs are payable; and (c) a benefit that is prematurely denied by an insurer may still be considered proper and trigger the two-year limitation period.