Category: Limitation Period

The insurer sought an order barring the claimant from proceeding with her application due to non-compliance with the limitation period. The insurer had denied further payment of NEBs by way of letter dated October 4, 2016, which was mailed to the claimant and faxed to her counsel. The claimant applied to the Tribunal on November 19, 2018 to dispute the NEBs and other denials. The claimant argued that the NEBs denial letter was never sent. Vice Chair Shapiro found there was virtually no doubt the letter was sent because the insurer was able to produce a fax confirmation report. Vice Chair Shapiro found the fax and letter were both sent on or about October 4, 2016 and the claimant had not appealed the NEB denial within the two year limitation period. Vice Chair considered section 7 of the LAT Act and found that the claimant had not met her burden. She had missed the deadline for a significant period of time with no reason for late filing.

A preliminary issue hearing was brought by the insurer for an order barring the claimant from proceeding with an application for IRBs due to the expiration of the limitation period. The insurer had notified the claimant on November 8, 2016 of stoppage of IRBs effective November 22, 2016 per IEs. The claimant requested payment on November 21, 2016 of IRBs from February 9, 2015 to November 22, 2016. The insurer obtained an accounting report to determine the amount payable as the claimant was self-employed at the time of the accident. The claimant was paid IRBs plus interest in a lump sum on July 28, 2017 based on the accounting report. The claimant filed his application for ongoing IRBs on May 29, 2019. The claimant argued his application was filed within the two year limitation period, stating that the calculation of limitation started on July 28, 2017 because the insurer’s letter enclosing the accounting report included reference to the two year limitation period. Adjudicator Norris found the November 8, 2016 letter started the limitation period as it satisfied the proper denial requirements. Adjudicator Norris did not consider the July 28, 2017 letter to impact the deadline because the letter was not a new denial of benefits. The letter’s purpose was to provide the claimant with a copy of the accounting report and confirm the amount of IRBs payable. Adjudicator Norris did not exercise his discretion to extend the deadline to file application under section 7 of the LAT Act as there was no evidence to show the claimant had any intention to appeal within the appeal period.

The claimant applied to the LAT in relation to NEBs, which had been denied on January 28, 2016. In January 2019 the claimant submitted an OCF-19 for a catastrophic impairment designation. The IEs agreed with the OCF-19 and the claimant was granted a catastrophic impairment. The LAT application was made in December 2019 for NEBs. The insurer argued that the claim was time barred. Adjudicator Boyce held that the limitation period did not apply. He relied on the Court of Appeal’s reasons in Tomec, reasoning that the claimant’s subsequent deterioration meant that she could not discover her claim for NEBs until years after the accident. Adjudicator Boyce also held that he would have extended the limitation period pursuant to section 7 of the LAT Act. The claimant had a bona fide intention to appeal the NEB denial in 2016, but then decided not to pursue the dispute as she was improving at the time. There was merit to the claim, based on the claimant’s psychological status. There was no prejudice to the insurer as it continued to assess the claimant for other benefits, and the IEs completed for the catastrophic impairment application provided a thorough comparison of her life activities and circumstances.

The claimant sought entitlement to NEBs. The insurer argued that the dispute was time barred. Adjudicator Farlam held that the denial of NEBs was clear an unequivocal, and that it was delivered to both the claimant and the claimant’s legal representative. The LAT application was made more than three months after the expiry of the limitation period. Adjudicator Farlam held that the section 7 of the LAT Act should not be used to extend the limitation period. The claimant did not show a bona fide intention to apply to the LAT within the two years after denial. The claimant also failed to show that the NEBs claim had merit, relying only upon an OCF-3 that noted NEBs entitlement.

The claimant sought entitlement to IRBs, housekeeping expenses, and various medical benefits. The insurer argued that the application was barred by the limitation period. Vice Chair McGee held that the insurer’s denials were clear and unequivocal, regardless of whether they were correct to deny the benefits. With regard to section 7 of the LAT Act, Vice Chair McGee held that she did not have the authority to extend the limitation period. She also noted that some of the disputed benefits were applied for almost 10 years after the initial denials.