Category: 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.

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.

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.

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.

M.T.G. v. Aviva General Insurance (formerly RBC General Insurance) (17-002122)

The insurer requested the preliminary hearing to address whether the claimant was limitation barred from pursuing a claim for IRBs because the LAT application was not commenced within two years of the insurer’s denial. Adjudicator Gottfried held that the claimant was not precluded from applying for IRBs. The limitations analysis involved a lengthy review of correspondence between Aviva, the claimant, and the claimant’s lawyer regarding IRB stoppage. The limitation decision rested on which letter from the insurer started the limitation clock. The claimant and his lawyer both denied receiving a letter from Aviva regarding IRB stoppage dated February 11 2015. Aviva claimed that this letter was sent to the claimant by regular mail and copied to the claimant’s lawyer. Adjudicator Gottfried accepted the affidavit evidence of the claimant and his lawyer that it was not received. Adjudicator Gottfried found that the date of discoverability of the denial was August 17, 2015, which is the date of a follow-up letter from Aviva to the claimant’s lawyer regarding IRB payments and stoppage. Aviva argued that even if the claimant’s lawyer had not received a copy of the original stoppage letter in February 2015, a copy of that letter was included in the complete AB file materials provided to the claimant’s lawyer on March 23, 2015. Adjudicator Gottfried’s analysis did not clearly state why this date was not accepted, though the evidence suggested that the claimant’s lawyer did not review the AB file materials.