Tribunal File Number: 17-000086/AABS

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:

B.T.

Applicant

and

St. Paul Fire and Marine Insurance Company

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Nick Romano

For the Respondent:

Christopher Dearden

HEARD:

In Writing on: July 5, 2017

OVERVIEW

1B.T. (“the applicant”) was involved in a motor vehicle accident (“the accident”) on November 9, 2013 and sought accident benefits (“ABs”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2The applicant applied to the Licence Appeal Tribunal (the “Tribunal”) when the ABs were denied.

3At the time of the accident, the applicant was working in traffic control for a road construction and maintenance operation. She was injured in a collision while driving her employer’s truck as part of her regular duties on the job.

4The applicant applied for ABs to her employer’s workplace insurance provider, which is the respondent in this matter.

5The Schedule sets out detailed steps for making an application for ABs. An applicant must provide detailed information and meet deadlines for filing his or her application. The insurer is not required to pay benefits to an applicant who fails to take the required steps to claim benefits, unless the applicant provides a reasonable explanation.

6The Schedule bars an appeal of an insurer’s refusal to pay ABs if the applicant has failed to follow the required steps to making a claim.²

PRELIMINARY ISSUES

7Is the applicant barred from appealing the respondent’s refusal to pay her claims because she did not follow the procedures for claiming ABs that are required by s.32 of the Schedule?

SUBSTANTIVE ISSUES – DISPUTED BENEFITS

8Subject to its finding on the preliminary issue, the substantive issues before the Tribunal are:

1. Is the Applicant entitled to an income-replacement benefit (“IRB”) in the amount of

$400.00 per week submitted to the respondent April 2014, for the period covering November 9, 2013 to date and ongoing?

2. Is the applicant entitled to the cost of a psychological examination in the amount of

$2,200.00 by Dr. Madhu Bhardawj of On-site Medical submitted on June 6, 2016; and denied by the insurer on June 20, 2016?

3. Is the applicant entitled to the cost of an on-site ergonomic assessment in the amount of

$1,433.27 conducted by Dr. Steven Simone of On-site Medical, submitted on June 24, 2016; and denied by the insurer on July 8, 2016?

4. Is the applicant entitled to interest on any overdue payment of benefits?

5. Is the respondent liable to pay an award under Regulation 664, Automobile Insurance³ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

FINDINGS

9The applicant did not comply with the prescribed procedures for claiming ABs with respect to her claim for IRBs. As a result of this finding:

i. The applicant is barred from appealing the respondent’s refusal to pay her IRB claims.

ii. The respondent is not required to pay the claimed benefits.

10The applicant’s appeal of the disputed costs of assessments is allowed, and amounts incurred with respect to those assessment plans is payable with interest.

11The claim for an award under the Regulation is denied.

REASONS

PRELIMINARY ISSUES

1. Is the appeal for IRBs barred by the limitation period?

Prescribed Process for Statutory Accident Benefits Application and Response

12Section 32 of the Schedule prescribes the procedures for claiming accident benefits (“ABs”) in detail, including a seven day time limit for notifying the insurer of an accident and a 30 day time limit for completing and submitting AB claim applications once the necessary forms have been received from the insurer.

13The section also sets out the insurer’s obligations to promptly provide the applicant with the application forms and specific, detailed explanatory information once it is notified that a person it insures has been in an accident.

14Section 32(6) of the Schedule requires the insurer to follow up with the insured person on any incomplete or unsigned application. Section 36(7) requires the insurer to process a signed but incomplete AB application unless “after a reasonable review of the incomplete application it is unable to determine without the missing information, whether a benefit is payable”.

15I have noted the relevant specific requirements in my analysis of whether or not the applicant complied with the Schedule in making her claims for benefits.

Consequences of Non-Compliance

16If an applicant fails to comply with the timelines set out in the Schedule for submitting her AB claim to the insurer, the insurer is not liable to pay her AB claim.⁴

17Section 34 of the Schedule allows an applicant who fails to meet the time limits for submitting her AB claim or for providing required information to remain eligible for benefits if she has a reasonable explanation for the delay.

18Section 55(1)1. Of the Schedule bars an insured person from applying to the Tribunal if that person has failed to meet the prescribed timelines for notifying the insurer of the circumstances giving rise to an AB claim or for submitting that claim.

19Accordingly:

i. If I find that the applicant has failed to comply with the requirements of ss.32 of the Schedule, without a reasonable explanation, the respondent is not liable to pay the disputed ABs, and her appeal is barred under s.55(1)1.

ii. If I find the applicant’s claims applications were either compliant or “reasonably explained”, and that the respondent has failed to comply with its obligations to process her claims according to the Schedule, the respondent will be liable to pay the claimed benefits.

iii. Either of the above findings will make it unnecessary for me to further assess the merits of the claim for IRBs.

Did the applicant comply with the Schedule in making her claim for IRBs?

20The applicant made a sworn statement dated May 11, 2017, that she filed an Application for Statutory Benefits (“OCF-1”) in “late April or May 2014”. Her lawyer has taken an oath also dated May 11, 2017 that he believes that he instructed his former law clerk to assist with the OCF-1.

21The respondent denies receiving an application from the applicant in April or May 2014, and notes that the applicant has not produced the application.

22I do not lend any weight to the applicant’s statement, as it is uncorroborated by documents and I do not find her lawyer’s statement useful: I find that it merely asserts that the lawyer believes his client, but lacks any supporting documentation or evidence as to why.

23The applicant re-submitted her claim on July 19, 2016, which she states that she did “out of frustration” and “to spur a response” from the respondent. She does not indicate that she used forms supplied to her by the respondent at that time to file the AB claim.

24The applicant states that she requested information from the respondent on five occasions from August 25 to November 16, 2016.

25The applicant acknowledges that the respondent contacted her with questions on October 12, 2016 and states that she responded to the questions on November 16, 2016.

26The applicant states that to date she has received no IRB payments, no explanation of reasons for denying her IRB claim, and no request to attend an insurer’s examination. She alleges total non-compliance with the Schedule with respect to her IRB claim.

27The respondent claims that the applicant is barred from seeking benefits because she failed to submit a completed application for benefits within 30 days of receiving the forms as required by s.32(5) of the Schedule.

28The respondent submits evidence that it began interactions with the applicant by telephone on February 18, 2014, three months after the accident, and followed up on February 20, 2014 with detailed information on making a claim, a number of blank OCF forms for completion, and a contact name for assistance with any questions. The respondent’s uncontested evidence is that it did not get any completed forms or documents back from the applicant in 2014.

29The respondent met with the applicant and her lawyer on April 8, 2014 to obtain a statement. The applicant’s lawyer returned a revised statement dated May 6, 2014 that lacked information required by the respondent to determine the claim, such as completed OCF forms, notice of election or information regarding its lawsuit.

30The respondent closed the file on November 12, 2014, a year after the accident, because it had not heard from the applicant or her lawyer, nor had it received the information it required to process her claim. The respondent did not send any notice of this decision to the applicant.

31The respondent acknowledges that the applicant contacted it in November 16, 2015 – more than a year after her previous contact – to ask for a copy of her accident benefits file. It states that it advised the applicant that it had received no application for benefits or OCF forms from her.

32The respondent’s evidence is that the applicant waited another eight months to complete an OCF-1 on July 19, 2016.

33In response to the applicant’s follow up on October 12, 2016, the respondent asked for a complete updated medical file but did not specify why it wanted that information. It also asked the applicant to explain why she had waited 2 ½ years from the accident to file a claim. It advised the applicant that it had closed her file because it had understood her to have proceeded with a WSIB claim and asked her to provide the reasons why she was denied WSIB coverage.

34The letter from the respondent also dated October 12, 2016 offers no support for any assertion that it was acknowledging or following up on a claim from 2014 – it is simply a response to the applicant’s most recent inquiry.

35On November 16, 2016, the applicant replied, stating that it had applied for accident benefits – without specifying the date, that she had never filed a WSIB claim – without indicating why she had never filed an assignment with the respondent, and requesting the AB file, including adjuster log notes.

36I find on a balance of probabilities that the applicant failed to comply with her obligations under the Schedule because:

i. I do not lend weight to her affidavit stating that she filed a claim in late April or May of 2014. The affidavits of the applicant and her lawyer did not persuade me that she filed an AB claim in April/May 2014. I found the recollections vague.

ii. I also concur with the respondent’s position that the applicant’s unexplained six month wait from the date she says she filed her AB claim to her first request to the respondent for her AB file makes it unlikely that the claim was filed as stated.

iii. The applicant’s affidavit statement that she thought that her claim had been denied because she hadn’t heard from the respondent lacks weight, and is not a reasonable explanation for the lengthy delays on her part: if she believed her AB claim to be denied, she could have appealed the denial at that time.

iv. In reaching my findings in sub-paragraphs iii. And iv., I am mindful that the applicant had legal counsel assisting her with this AB claim as well as with a civil action arising from the accident.

v. Uncontroverted evidence indicates that the applicant and her lawyer met with the respondent’s representatives on February 18, 2014 and received the required application forms and related documents at that time. The applicant stated that she submitted an application for benefits in “late April or May 2014”. Even if that is true, it places her well beyond the 30 day deadline for filing a claim set by the Schedule.⁵ And she offers no explanation for the delay..

vi. Under s.34 of the Schedule an applicant who fails to meet the time limits for submitting her claim may still be entitled to a benefit if she has a reasonable explanation; however, the applicant offers no such explanation for the delays.

37The applicant asserts that the respondent had an obligation to reach out to the applicant to solicit her claim as soon as it became aware of the accident and her injuries from it. She further asserts that it was obliged to assist her to obtain OCF- 2s from her employer in support of her claim for IRBs, because of the respondent’s relationship to the employer as its insurance provider. She does not provide any legal or regulatory basis for these assertions. I find no basis for it in the Schedule and accordingly I can give it no weight.

38The applicant had legal counsel at the meeting of February 18, 2014, and her lawyer’s own sworn statement is that he explained her rights and options to her. She does not deny the respondent’s claim that it followed up with more documents and explanations on February 20, 2014. I find that these facts make it unlikely that she misunderstood her responsibility to take action on her application for statutory accident benefits. She cannot claim “confusion” as an explanation for not managing her obligations in the AB claims process.

39I note that the applicant raises a new argument in its reply submission, namely that the respondent lost the application she claimed to have filed in 2014. As evidence she uses selected quotes from adjusters’ log notes and records.

40My reading of the log notes, which the respondent was not afforded the opportunity to contest, is that they prove nothing except that old files can be hard to find and that in this case when the files were located, the accident benefits application that the applicant claims to have made was not found. The failure to find something does not prove that it was received and then lost or misplaced. It provides no evidence that the application was sent in 2014. It does not support the applicant’s arguments.

41The evidence and argument with respect to disputed medical benefits are the same as for the IRBs. The submissions do not address them discretely. Accordingly, the applicant’s claims for medical benefits and costs of examinations were determined by me on the same basis.

42I find that the applicant’s failure to submit an AB claim within the prescribed timelines in s.32 (5) of the Schedule has the following consequences:

i. The respondent is not required to pay claimed IRBs in dispute.

ii. The applicant is statute-barred from appealing the respondent’s refusal to pay for her claimed IRBs to the Tribunal by operation of s.55 (1)1.

43Because I have found for the respondent on the issue of compliance, it is unnecessary for me to consider the substantive merits of the applicant’s claims for IRBs. Her application on that issue is dismissed.

Was the applicant’s April claim denied or reasonably understood to be denied?

44The Tribunal’s Order of May 4, 2017 sets out as an issue:

Was the applicant’s April claim for IRBs denied or reasonably understood to have been denied by the respondent?

45I read this question as an argument against the statute-bar proposed by the respondent in relation to the IRB portion of her claim – the IRBs sought would last from November 2013 to date and ongoing.

46After reading her submissions, I understood the applicant’s position to be that the respondent simply failed to respond to an AB claim for IRBs that she filed in April or May of 2014.

47In her affidavit, the applicant alleges that the respondent never replied to her application, stating “I did not hear from the insurance company ever again and I thought they had denied my claim”.

48The applicant then contends that this failure by the respondent to meet its prescribed obligations to her – namely, to respond to the claim and either pay it, deny it, or follow up with her on any missing information it needs⁶ – amounts to a denial, which she can appeal to the Tribunal.

49I find that the applicant’s April AB claim cannot be determined to have been denied because I have determined that she has not proven that she actually submitted an AB claim in April or May of 2014.

SUBSTANTIVE ISSUES: Costs of Assessment

50Section 38(8) of the Schedule requires the insurer to give the insured person a notice within 10 business days after receiving an assessment plan, with an explanation of the benefits it will pay, and the reasons for refusing any part of the claimed benefits.

51If the insurer fails to provide the prescribed notice, section 38(11)2 of the Schedule requires it to pay for all assessments and examinations described in the plan that relate to the period starting on the eleventh day after it received the plan and ending on the day that the insurer provides the required notice.

52The parties agree that the applicant’s health care provider filed two assessment/examination plans with the respondent in June, 2016.

53Her uncontested evidence is that she never received a denial from the respondent.

54It is also uncontested that her legal representative was informed by the health care provider who prepared the plans that the insurer had denied the plans, with the reason stated “IE to be set up – it’s been over two years DOL and no tx⁷ has ever been requested.” The respondent does not dispute having issued this message to the health care provider.

55The respondent contends that the applicant is statute-barred from this claim because of its “late notice”.

56It is frankly unclear from the evidence exactly when the respondent was notified of the accident as required by s.32 (1) of the Schedule. But it is obvious from the evidence that the respondent was by June 2016 very well aware of those facts: its own evidence showed active engagement with the applicant in 2014 and a willingness to provide her with AB claim forms and information.

57The respondent did not offer any argument to support the position that a person who is late in reporting an accident should effectively be barred for life from applying for medical benefits or costs of assessment.

58It argues that since she still hasn’t provided evidence “of an election to receive SABS benefits” her assessment plans have been filed before her Application for Benefits, and are therefore not payable.

59The respondent also states that it believes that the applicant is likely covered by the Minor Injury Guideline, that she has failed her obligation to take steps to mitigate her injuries or participate in treatment.

60I find that the respondent’s arguments do not amount to an excuse for not complying with s.38 (8) of the Schedule. Any of the reasons it provided to me in its submissions for denying these plans could have and should have been communicated to the applicant in a proper explanation of benefits. Any information it required to adjust these claims could have and should have been clearly requested at that time. It could have required the applicant’s attendance at an insurer’s examination to get the medical information it needs to adjust her claim.

61I find that the respondent is liable to pay any expenses actually incurred by the applicant in relation to the disputed assessment plans in conformity with s.38 (11) of the Schedule.

62Because I have found that the insurer did not comply with s.38(8) of the Schedule, it is prohibited from taking the position that the applicant is covered by the Minor Injury Guideline by direct application of s.38(11)1.

Request for Interest

63Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

64The applicant is not entitled to interest on the denied IRB claims, because I have concluded that no payment is due from the insurer.

65The applicant is entitled to interest on any amounts it has incurred in relation to the two treatment plans set out above.

Award

66Section 10 of Regulation 664 permits me to award a lump sum of up to 50% of the amount to which the applicant is entitled together with interest on all amounts then owing (including unpaid interest) if I find that the insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

67I found for the applicant statute-barred from an appeal of its IRBs and my review of her evidence does not persuade me the insurer was unreasonable in delaying payment of the disputed costs of assessment.

68The Award request is denied.

CONCLUSIONS

69The applicant is statute-barred from appealing the respondent’s refusal to pay her IRB claim for the period November 9, 2013 to date.

70The respondent is liable to pay any amounts incurred by the applicant with respect to the two assessment plans.

71The respondent is liable to pay on overdue payments of the incurred costs of the disputed treatment plans.

Date of Issue: December 27, 2017

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1O.Reg. 34/10.
2. 2s.55 of the Schedule
3. 3R.R.O. 1990, Reg. 664
4. 4see s.32(8), and s.36(3) for IRBs
5. 5Section 32(5) of the Schedule requires the applicant to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
6. 6See s.32(6) of the Schedule – an insurer has 10 business days after receiving an AB application to notify the applicant of any missing information required to determine whether the claimed benefit is payable
7. 7“tx” means medical treatment