A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with his claim for IRBs due to failure to commence his application within two years after the insurer’s refusal to pay the amount claimed. Adjudicator Corapi concluded that the claimant was statute-barred from proceeding with his application for IRBs and declined to extend the limitation period under s.7 of the LAT Act. The claimant had taken one day off following the accident and then worked full-time with certain limitations for about 16 months. An initial OCF-3 was submitted May 17, 2016 that indicated the claimant was able to return to work on modified hours/ duties and was advised not to return to work but did so due to financial reasons. The insurer notified the claimant he was not eligible for IRBs and pointed out the claimant had continued to work. A second OCF-3 was submitted on December 5, 2019 that stated the claimant was unable to return to his pre-accident work and to any modified hours or duties. The insurer responded that its position remained the same and the applicant was statute-barred from disputing the IRB denial. The claimant argued that the insurer had not communicated in the two year period that his IRBs were statute-barred. The claimant submitted that the insurer’s denial letter did not meet the “clear and unequivocal test” because it had not clearly stated whether the claimant’s IRBs were being denied and stated that the claimant both qualified and did not qualify for IRBs. Adjudicator Corapi wrote it was important to note the relevant requirements under section 5(1)1 and 6(2)b of the SABS that defined the level of impairment that the claimant had to suffer for IRB entitlement and the requirements changed over the time of the accident. In regard to s.7 of the LAT Act, there are four strict factors that the Tribunal weighs to determine the justice of the case for an extension to be granted. Adjudicator Corapi determined the insurer’s denial was valid and the claimant had provided no compelling reason to grant a limitation extension. Although the insurer issued a proper denial, Adjudicator Corapi found that the claimant’s action of submitting a second OCF-3 almost 3 years later was an indication the claimant believed his application for IRBs was still an option. However, the factor outlined in Manuel stated there must be a bona fide intention to appeal, which the claimant did, but almost 8.5 months after the deadline. Adjudicator Corapi found the claimant had not provided compelling evidence of a bona fide intention to appeal. There was an extraordinary lapse of time in the claimant’s appeal given the facts of the case. The adjudicator also found that the insurer would be prejudiced as it procedurally met the requirements for its denial and this would invite a second opportunity for the claimant to claim an IRB. An extension would undermine the certainty of the limitation period that insurers rely upon. The claimant would also bear the burden of defending an additional claim after several years without medical assessments to address it. The merit of the claimant’s claim was limited due to his return to work following the date of loss. Adjudicator Corapi also found the merits of the claimant’s case for post-104 IRBs was not strong as her would have to establish eligibility for benefits within the first 104 weeks after the accident to qualify under s.5 of the SABS.
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