The preliminary issue in this matter was whether the claimant was statute barred from disputing the attendant care benefit and treatment plans for physiotherapy due to the expiry of the limitation period in s. 56 of the Schedule. Adjudicator Johal concluded that the claimant was entitled to dispute these denials at the Tribunal. Adjudicator Johal referred to the case of Turner v. State Farm Mutual Automobile Insurance Company, where it was held that the insurer’s denial must be clear and unequivocal. Further, in Sietzema v. Economical Mutual Insurance Company, the Court of Appeal found that an insurer’s denial was valid only if it gave the claimant a clear notice of their rights to mediation, followed by arbitration, litigation or a neutral evaluation if the claimant wished to dispute the refusal, and a clear notice of the two-year limitation period. In this case, the insurer’s initial denial of the attendant care benefit was not a clear and unequivocal denial as it stated that the insurer agreed to fund attendant care needs pending a further determination. A second letter was sent at a later date which would allow for the Tribunal application to remain within the limitation period. With respect to the treatment plans for physiotherapy, the Adjudicator concluded that the claimant was statute-barred, but that the limitation period should be extended under s. 7 of the LAT Act because there was some merit to the claimant’s claim and the Adjudicator was not persuaded that there would be any prejudice to the insurer.
