Category: Limitation Period

N.V. v. Allstate Insurance Company of Canada (18-008774)

The claimant sought reconsideration of the Tribunal’s decision that the limitation barred the IRB claim and that section 7 of the LAT Act should not apply to extend the limitation period. Adjudicator Boyce rejected the reconsideration request. He held that no error was made by the Tribunal in concluding that the insurer’s denial was clear and unequivocal. The claimant’s return to work was a valid reason for the IRB denial and complied with section 37(4). Adjudicator Boyce also rejected the argument that Tomec created a new date of discoverability for the IRB claim. He reasoned the Tomec was only applicable in the case of a catastrophic impairment finding (which was not present in this claim).

S.W. v. Aviva General Insurance Company (19-002127)

The insurer sought reconsideration of the Tribunal’s decision to allow the claimant to extend the limitation period under section 7 of the LAT Act. The insurer argued that the Tribunal did not have jurisdiction to extend the limitation period, or alternatively, that the facts of the case did not warrant the extension. Adjudicator Boyce dismissed the reconsideration request. He rejected the argument that the Tribunal did not have jurisdiction to extend the limitation period, noting that only a few adjudicators came to the opposite conclusion. Applying the four factors to the present claim, Adjudicator Boyce found no error in how the Tribunal approached the request to extend the limitation period. He reiterated that the delay was only a few business days and that the claimant’s failure to dispute within the timeline was due to clerical errors.

M.L. v. Unifund Assurance Company (19-009999)

The claimant applied to the LAT seeking IRBs following her 2015 accident. She had returned to work after the accident, and the insurer denied entitlement to IRBs. After the 104 week mark, the claimant stopped working and submitted an Election to the insurer claiming IRBs. The insurer again denied IRBs, arguing that IRBs had been denied four years prior and the claimant failed to establish entitlement to IRBs within the first 104 weeks. Notably, the claimant was deemed to have suffered a catastrophic impairment as a result of the accident in 2019. Adjudicator Boyce found that the limitation period applied to the IRB claim, and the claimant failed to establish IRB eligibility because she did not suffer a substantial inability within the first 104 weeks after the accident, regardless of her deteriorating condition after the 104 week mark. He rejected the claimant’s argument that Tomec would create a new date of discoverability for the IRB claim.

A.Q. v. Wawanesa Mutual Insurance Company (19-006903)

The claimant sought entitlement to ACBs and various medical benefits. The insurer argued that the limitation period barred the ACBs claim and that the claimant failed to attend IEs related to the medical benefits claimed and was unable to dispute entitlement until attending the IEs. Adjudicator Boyce held that the insurer’s denial of ACBs in which it requested IEs triggered the limitation clock, even though the claimant did not attend the scheduled IEs. Adjudicator Boyce did not extend the limitation period under section 7 of the LAT Act because the claimant failed to show a bona fide intention to appeal the denial of ACBs within the two-years; the 45 day delay was excessive in the context of the claimant being represented and where the claimant provided no indication that he would be challenging the denial; and the insurer would suffer prejudice because the claimant prevented the insurer from obtaining contemporaneous assessments of ACBs entitlement. Regarding the medical benefits, Adjudicator Boyce held that the insurer’s IE requests were sufficiently particularized, that the requests were timely and in response to specific claims, and that the claimant’s failure to attend the IEs prevented him from applying to the LAT.

A.M. v. Aviva General Insurance Company (19-004182)

The claimant sought entitlement to IRBs. The insurer argued that the limitation period applied. Adjudicator Grant agreed with the insurer and dismissed the claim. He found that the insurer clearly and unequivocally denied IRBs in January 2017 when she returned to work. The LAT application was filed in April 2019. Adjudicator Grant did not extend the limitation period under section 7 of the LAT Act because the claimant did not show any intention to dispute IRBs prior to the that time, the three month delay was unreasonable and without explanation, and the insurer could be prejudiced if it was required to defend the claim years after the denial without medical assessments.

V.O. v. Aviva General Insurance (19-002218)

The claimant sought entitlement to the cost of a psychological assessment. The insurer argued that the limitation period barred the claim. Adjudicator Driesel agreed that the proposed assessment was denied more than two years before the LAT application. The denial was mailed to the claimant, which is a permitted method under the SABS. While no proof of mailing was filed, there was no evidence filed by the claimant or the legal representative indicating that the letter was not received. No arguments were made regarding section 7 of the LAT Act.

N.P. v. Western Assurance Company (19-012841)

The claimant sustained a significant impairment as a result of an accident on November 24, 2013. The insurer accepted that the claimant was catastrophically impaired on February 24, 2014. The insurer denied ACBs and HK expenses on May 23, 2014. The claimant disputed entitlement in a FSCO arbitration, and the benefits were settled via a “Partial Final Release” on July 1, 2016. Notably, the partial settlement governed entitlement to ACBs and HKs “only to June 28, 2016”. On October 30, 2019, the claimant submitted a OCF-18 in the amount of $1,459.16 for an in-home assessment, which was denied by the insurer, who argued that the issue was statute barred pursuant to s. 56 of the SABS as per their May 23, 2013 denial. Adjudicator Boyce ruled that the OCF-18 was payable, as the settlement of the issues specifically noted that it only covered ACBs and HK expenses “only to June 28, 2016”, and did not indicate that by signing the release that the claimant was abandoning any future claim for ACBs or that she was barred from seeking re-assessment for the same in the future. He also noted that the claimant had litigated the denial in the past with a FSCO dispute, showing clear intent to dispute the issue. Furthermore, the insurer did not provide the claimant with an SDN and even noted in an email dated June 29, 2016 that “Since this is a partial settlement, there will be no Settlement Disclosure Notice”, indicating to Adjudicator Boyce that, as a catastrophically impaired insured, the claimant would be free to pursue future entitlement to ACBs and HKBs in the future as her circumstances and condition changed.

S.D-T. v. Wawanesa Mutual Insurance Company (19-009280)

The claimant sought entitlement to IRBs and psychological treatment. A preliminary hearing was held to determine whether the claimant was statute barred from proceeding with her claim for failure to dispute the following issues within the two year limitation period. Vice Chair Farlam found the claimant’s application was statute-barred and dismissed the claims. She found that the insurer’s correspondence denying IRBs and medical benefits was clear and unequivocal. Vice Chair Farlam rejected the claimant’s argument that a request for further medical information or continuing to assess entitlement to benefits extended the limitation period. Finally, the Tribunal declined to extend the limitation period under section 7 of the LAT Act. Although the delay was under two months, Vice Chair Farlam noted that the 104 week mark was a critical period for adjusting entitlement to IRBs, and there would be prejudice to the insurer if the claimant was permitted to proceed with the dispute.

F.K. v. TD Home and Auto Insurance Company (18-008114)

The claimant sought entitlement to NEBs, ACBs, and psychological treatment. Adjudicator Gosio rejected the claims for NEBs and ACBs, and found that the psychological treatment plan was disputed more than two years after the denial. The claimant failed to lead sufficient evidence that the accident was the cause of her impairments, as she had extensive pre-accident injuries and impairments. Adjudicator Gosio also rejected the claimant’s argument that the “material contribution” test should apply. Regarding the claim for ACBs, the adjudicator again noted that the claimant was receiving personal care in relation to an earlier accident and that she failed to prove that further care was required as a result of the subject accident. The disputed psychological treatment was denied more than two years prior to the LAT application.

F.G. v. Aviva General Insurance (19-002587)

A preliminary issue hearing was held to address whether the limitation period barred the claimant’s IRB dispute. Adjudicator Norris held that the limitation period applied. The IRB denial was clear and unequivocal, and the limitation period did not “restart” when the insurer re-iterated its denial of IRBs in subsequent correspondence. Adjudicator Gosio did not extend the limitation period under section 7 of the LAT Act. The length of the delay was more than six months, there was no evidence of bona fide intention to appeal within the two year limitation period, the insurer would be prejudiced in its adjusting of the claim if the dispute was permitted to proceed, and there was insufficient evidence in support of the merits of the appeal.