Category: Limitation Period

A preliminary issue hearing was held to determine whether the claimant’s application was statute-barred from appealing the denial of IRBs and medical benefits because the claimant failed to commence her appeal within two years. Adjudicator Paluch found that the claimant was statute barred from proceeding with her claim for IRBs and medical benefits . In Adjudicator Paluch’s analysis, he referred to the principals outlined in Smith and Co-Operators General Insurance Company to determine whether a denial was proper. Adjudicator Paluch failed to understand the claimant’s argument that the insurer’s denial date was something different than the actual date of the denial letter. Under section 56, the limitation period begins to run from the date of denial and not by the effective stoppage date of the benefit as argued by the claimant. In regard to the medical benefits, Adjudicator Paluch found the insurer had unequivocally informed the claimant of her right to dispute the denials, the reasons for the decision, the two year limitation period to dispute the claim, detailed the necessary steps to file an application and invited the claimant to contact the adjuster for assistance, if needed. The claimant had not offered any excuse for the delay in disputing the treatment plans. The claimant also sought relief from the expiry of limitation period under section 7 of the LAT Act. Adjudicator Paluch held that section 7 of the LAT Act did not apply because the limitation period for accident benefits claims is fixed under a regulation, the SABS, and not by or under any Act. Adjudicator Paluch therefore determined that he did not have jurisdiction to extend the limitation period.

A preliminary issue hearing was held to determine whether the claimant was barred from appealing a denial of benefits claimed for MIG determination, IRBs, ACBs, housekeeping, medical benefit expense claims, a CAT determination and a special award. Vice-Chair Boyce held the claimant was statue-barred from appealing the denials due to the claimant’s failure to dispute the insurer’s valid denials within the two year limitation period and that the claimant had failed to demonstrate an extension of time under section 7 of the LAT Act was warranted. Vice-Chair Boyce made reference to Smith v. Co-Operators General Insurance Company in which the Supreme Court of Canada set out the requirements to satisfy there is a proper denial of benefits. Vice-Chair Boyce found the insurer’s denials to have easily met the notice requirements in Smith. The Vice-Chair indicated that the explanation of benefit letters of the insurer in this case were some of the most detailed and specific denials he had seen and went beyond the minimum notice requirements. In regard to exercising the Tribunal’s discretion to extend the limitation period under section 7 of the LAT Act, Vice-Chair Boyce did not find the claimant had bona fide intention to appeal the denials within the two year limitation period prescribed under the SABS. The Vice-Chair noted the claimant had been represented by counsel since the accident in November 2015 and the claimant’s application had not been submitted until August 21, 2019 after he obtained his third representative. The claimant failed to show any evidence of extenuating circumstances that prevented him from filing his application or from instructing his counsel to do so over the past five years. In addition, there was an absence of routine documentation and correspondence related to certain claims that might have indicated an intent by the claimant to dispute the insurer’s appeals that also demonstrated the claimant did not have the intention from the beginning to appeal. The Vice-Chair rejected the claimant’s submission that the delay in appeal did not prejudice the insurer. The Vice-Chair found the delay caused prejudice to the insurer because it had not been able to contemporaneously assess the claimant’s impairments and adjust the file accordingly for several years as the claimant remained in the MIG. Vice-Chair Boyce found the justice of the case did not warrant what would amount to a significant extension of the limitation period.

The insurer sought an order that the claimant’s application for IRBs was time barred since it was commenced more than two years after the denial. The insurer had written to the claimant and her legal representative of the stoppage, provided the claimant with a copy of the IE report and advised of the right to dispute by filing an application within the two year time limit. Vice Chair Farlam found that the insurer’s IRB stoppage letter was clear and unequivocal and included a warning if the claimant did not apply within the two year limit, she would be statute barred. Vice Chair Farlam declined to exercise her discretion to extend the time limit under section 7 of the LAT Act because there was no evidence to show the claimant’s bona fide or good faith intention to appeal within the time period. The claimant had failed to establish that her application had merit. The claimant filed no evidence and as such, she was likely unable to meet the test for IRBs.