Tribunal File Number: 16-000726/AABS
Case Name: 16-000726 v Aviva Insurance Company of Canada
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c. I.8, in relation to statutory accident benefits
Between:
G. P.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION ON A PRELIMINARY ISSUE
Adjudicator: Brian Norris
Appearances:
Counsel for the Applicant: Murray Tkatch
Counsel for the Respondent: Danielle Wilkinson
Heard in writing and by teleconference on September 29, 2016.
OVERVIEW:
The applicant was injured in an automobile accident on August 31, 2006, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 (the “Schedule”)1.
The applicant received income replacement benefits (IRB) from one week post-accident to September 30, 2006, when the applicant returned to work.
Over nine years after the applicant’s return to work, she wrote to the respondent, advised that she is unable to work, and requested reinstatement of the IRB.
The respondent did not reinstate the benefit and relied on the Explanation of Benefits dated October 19, 2006, which limited entitlement to the benefit to sixteen weeks.
Unable to resolve the dispute, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
Should this application for an IRB be dismissed as it was filed more than two years after the insurer’s refusal to pay the benefit claimed, in accordance with subsection 51 of the Schedule and subsection 281.1(2) of the Insurance Act, R.S.O. 1990, c.I.8. (“Insurance Act”)?
Should this application for an IRB be dismissed because the applicant failed to apply for benefits within 104 weeks of the accident pursuant to section 4 (1) 1 of the Schedule?
RESULT
- The application for an IRB should be allowed to proceed. The Explanation of Benefits dated October 19, 2006 was not a denial of benefits and did not start the two year limitation period. There is no requirement in s. 4(1)1 that the applicant apply for an IRB within 104 weeks of the accident. Regardless, the applicant made her original claim for an IRB within 104 weeks of the accident.
BACKGROUND
The applicant was injured in an accident on August 31, 2006. She received an IRB until her return to work on September 30, 2006.
On October 19, 2006, the respondent sent an Explanation of Benefits (EOB) to the applicant. The EOB acknowledged the applicant’s eligibility for an IRB and advised the applicant that
“the Insurer is not required to pay an income replacement benefit, for the first week of the disability (Wait Period Aug 31/06 to Sept 06/06) and for any period longer than 16 weeks (Until Dec 20, 2006) after the accident, in the case of an insured person whose impairment comes within the Grade II Whiplash Guideline, if the accident occurred after April 14, 2004”.
The respondent also included a standard form which advised the applicant of her rights to dispute.
On November 26, 2015, more than nine years after the applicant had returned to work, she advised the respondent that she is completely disabled and unable to work. She provided the respondent with a medical opinion, which supports her position that she is unable to work, and made a claim for reinstatement of her IRB.
The respondent denied the reinstatement of the IRB, advising the applicant that it was “unable to give any further consideration to [the applicant’s] income replacement benefit claim as per our OCF-9 dated October 19, 2006”. The respondent also requested the production of various medical documents in an effort to “properly address [the applicant’s] accident benefit claim”.
Unable to resolve the dispute, the applicant filed for mediation with the Financial Services Commission of Ontario (“FSCO”). Mediation was unsuccessful and the applicant filed an appeal with the Tribunal, seeking payment for an IRB from September 30, 2006 to-date.
Prior to the commencement of a hearing on the substantive issues in this matter, the parties requested that the Tribunal decide as a preliminary issue whether the applicant is able to proceed with her application for IRB as it is limitation-barred, or because she did not make her application for IRB within 104 weeks of the accident. I heard no evidence regarding the applicant’s entitlement to an IRB, and make no finding on the merits of her claim which is a matter for the hearing adjudicator to decide.
ANALYSIS
Positions of the parties
The positions of the parties are as follows:
For the applicant:
The EOB that the respondent relies on as a denial of the IRB does not terminate the benefits, it only calculates benefits; and
The applicant submits that, until her request for reinstatement in November 2015, she did not make a claim for IRB beyond September 30, 2006, therefore there is no claim for the respondent to deny.
For the respondent:
The EOB was a denial of the applicant’s claim for IRB in 2006. The application must be dismissed for failure to dispute the denial within the 2 year limitation period in accordance with s. 51 of the Schedule; and
In the alternative, the respondent submits that the application must be dismissed as the applicant made a new claim for IRB in November 2015, which was not made within 104 weeks of the accident as required by s. 4(1) 1 of the Schedule.
Was the appeal filed outside of the two year limitation period?
The two year limitation period starts when an insurer provides an insured with a refusal to pay which is clear, unequivocal, and advises the insured of their appropriate dispute resolution options: Smith v Co-operators General Insurance Company, 2002 SCC 30.
The respondent relies on the EOB dated October 19, 2006 as a valid refusal to pay the benefit claimed. It submits that the applicant is barred from commencing this proceeding as it has been more than two years since the respondent refused to pay the benefit claimed.
The applicant argues that there was no claim for benefits for the respondent to deny. She submits that there is no claim for an IRB beyond September 30, 2006 until her letter dated November 26, 2015. It is the applicant`s position that the EOB the respondent relies on as a denial does not terminate benefits, but instead calculates benefits.
It is notable why the respondent advised the applicant how long she may be eligible for an IRB. The period of eligibility is based on the statutory entitlement prescribed by s. 5(2) e of the Schedule which applies to injured persons who fall within the Pre-Approved Framework Guideline (PAF). In the case of a Grade II Whiplash Associated Disorder, which the applicant was initially diagnosed with, the maximum period of entitlement is capped by statute at sixteen weeks.
The PAF is a characterization of impairments from a previous version of the Schedule which is much like the Minor Injury Guideline of today. It was reserved for soft tissue injuries, and granted a statutorily defined set of benefits for insured persons found to be in the PAF. Unlike the Minor Injury Guideline, the PAF granted an insured person IRB.
The respondent relies on the PAF characterization as a denial of IRB entitlement beyond December 20, 2006. By doing this, the respondent contends that their characterization of the applicant’s impairments as falling within the PAF, and advising the applicant of the statutory limitation of the applicant’s IRB to 16 weeks by the Schedule, constitutes a clear and unequivocal denial of the applicant’s claim for IRB beyond December 20, 2006.
I disagree for the following reasons.
The characterization of the applicant’s impairments as being within the PAF was a determination of the applicant’s entitlement to benefits. The limitation of those benefits to 16 weeks was by operation of the Schedule, not a decision by the respondent to terminate those benefits at the end of 16 weeks. It is well established that the Schedule is consumer protection legislation. In my view, a lay person would not read the EOB as an unequivocal denial of benefits, but as statement of entitlement. This is particularly so for the applicant whose application for reinstatement of IRB disputes that her case is one of “an insured person whose impairment comes within the Grade II Whiplash Guideline”.
Second, should the applicant be successful in her claim that her impairments are outside the PAF, she would not be bound by the statutory limits which were based on the initial characterization of her impairments. The respondent has an obligation to continuously adjust the file and must consider the applicant’s claim that her impairments take her out of the PAF. In my view, the limitations clock starts with the respondent’s December 18, 2015 denial of the applicant’s claim that she is entitled to benefits beyond those granted by the PAF.
For the reasons outlined above, I find that the EOB dated October 19, 2006 is not a clear and unequivocal denial of the applicant’s claim for IRB.
Did the applicant apply for an IRB within 104 weeks of the accident?
The respondent disputes that the applicant applied for an IRB within 104 weeks of the accident.
I do not see a requirement in the Schedule which dictates that, in order to collect an IRB, an insured person must apply for an IRB within 104 weeks of the accident. Section 4(1)1 of the Schedule only requires that the insured person must have suffered a substantial inability to perform the essential tasks of her employment within 104 weeks post-accident. The legislation is silent on when an applicant must apply for an IRB, and I reject the respondent’s submission on this basis.
However, if I am wrong in my decision on this point, I find based on the evidence before me that the applicant applied for an IRB with her initial application for accident benefits, which was within 104 weeks of the accident. I also find that the applicant did not commence a new claim for an IRB with her letter of November 26, 2015.I am of the view that there can only be one claim for IRB by an applicant per accident. Attempted returns to work do not put an insured person back to a state where they must make a fresh application for IRB. In my opinion, submissions concerning multiple claims only confuse the issues to be resolved in this matter.
The evidence shows that the applicant submitted a completed application for Accident Benefits (OCF-1) dated September 12, 2006, which indicated that the applicant’s injuries prevent her from working. The document is stamped by the respondent as received October 5, 2006.
The applicant also submitted a completed Disability Certificate (OCF-3), dated September 11, 2006 and signed by her physician Dr. Gonzalez. The OCF-3 advised that the applicant was substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident. The document is stamped by the respondent as received October 5, 2006.
In addition to the OCF-1 and OCF-3, the applicant submitted an Employer’s Confirmation Form (OCF-2) dated September 9, 2006 which was completed and signed by her employer. The document is stamped by the respondent as received October 5, 2006.
The OCF-2 is used to collect data from an employer when an insured person makes a claim for IRB. The OCF-2 provides the insurer with details such as the employers contact information, the insured’s job description, their compensation, and access to supplemental disability benefits. There is virtually no other use for the OCF-2 but to make a claim for IRB.
As noted above, I am of the view that there can only be one claim for IRB by an applicant per accident. Considering this, and on a balance of probabilities, I find on the evidence before me that the applicant made a claim for an IRB in 2006. I am satisfied that the applicant submitted enough information to determine the entitlement and quantum for an IRB and that the respondent received the information within 104 weeks of the subject accident.
COSTS
The respondent has requested costs under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”). The Tribunal can award costs in the event that a party’s behaviour in a proceeding is unreasonable, frivolous, vexatious, or in bad faith.
I find that neither party is entitled to costs as neither party, during the course of the proceeding, has demonstrated behaviour which is unreasonable, frivolous, vexatious, or in bad faith.
CONCLUSION
I find that the applicant may proceed with the appeal.
I order parties to attend a case conference to engage in settlement discussions and/or address the particulars related to scheduling a hearing.
Released: February 13, 2017
Brian Norris,
Adjudicator