Licence Appeal Tribunal
Tribunal File Number: 17-000224/AABS
Case Name: 17-000224 v Allstate 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.
And in the matter of a motion brought by the Respondent seeking an order dismissing the Applicant’s claim for an income replacement benefit and for three medical treatments.
Between:
D. S.
Applicant
and
Allstate Insurance Company of Canada
Respondent
REASONS FOR DECISION AND ORDER
Order made by: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant: Robert Kostyniuk, Counsel
For the Respondent: Aimee Draper, Counsel
Heard in Writing: May 23, 2017
[1]. The applicant was injured in a motor vehicle accident on June 13, 2012. Over the intervening years she has applied to the respondent for statutory accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent has denied a number of her claims for benefits and she has commenced proceedings both at the Financial Services Commission of Ontario (“FSCO”) and to this Tribunal. With respect to the application to this Tribunal, the respondent takes the position that four of the substantive claims were made after the expiry of the two year limitation period.1 The parties consented to a written preliminary motion hearing to determine the limitation period question.
[2]. The issues in dispute that the respondent maintains were brought after the two year limitation period are:
a. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period June 21, 2012 to July 31, 2015 for a total claimed amount of $15,661.21?
b. Is the applicant entitled to a medical benefit in the amount of $2,932.73 for physiotherapy services, recommended by Natural Touch Rehab in a treatment plan submitted to the respondent on December 20, 2012?
c. Is the applicant entitled to a medical benefit in the amount of $3,139.97 for physiotherapy services, recommended by Natural Touch Rehab in a treatment plan submitted to the respondent on October 4, 2013?
d. Is the applicant entitled to a medical benefit in the amount of $3,139.97 for physiotherapy services, recommended by Natural Touch Rehab in a treatment plan submitted to the respondent on February 11, 2014?
[3]. According to the case conference order, the question I am asked to decide is: Are the applicant’s claims for income replacement benefits and medical benefits listed above statute barred due to non-compliance with the applicable limitation period?
[4]. In its submissions, the respondent sets out the test for determining the date when the limitation period begins to run. It begins to run when an insurer denies a claim for statutory accident benefits. To trigger the running of the limitation period, the insurer’s denial must be delivered in writing, and include clear instructions on how to dispute the insurer’s denial understandable by lay person.2
[5]. The applicant does not argue any defect in the respondent’s denial notices in her submissions. The case conference order addresses a dispute between the parties as to the date of the denial. According to the order, the applicant took the position that the date of denial was November 28, 2016 while the respondent took the position that it was February 25, 2014. The applicant made no submissions and advanced no evidence in support of her position that the date of denial was November 28, 2016 and I will treat that argument as abandoned. The applicant applied to the Tribunal on January 5, 2017.
[6]. This is a written motion. I have reviewed the submissions of the parties and the attached documentary evidence. I have also reviewed the affidavit of Jenna McNamee submitted as part of the respondent’s materials. I find that the applicant’s claims for income replacement benefits and the three treatment plans in issue were made after the expiry of the two year limitation period.
ANALYSIS
[7]. The applicant’s failure to present evidence that refuted the denial notices in question or that established a date of denial later than February 25, 2014 completely disposes of this motion. The application for dispute resolution was not filed until January 5, 2017, well beyond the two year limitation period. Notwithstanding that fact, I will briefly review the evidence.
[8]. Both parties submitted business records. The respondent’s documents were attached to the affidavit of Ms. McNamee. She appends a number of documents that were not included in the applicant’s materials, notably the denial forms, and weaves them into a narrative. I rely on Ms. McNamee’s affidavit for the chronology of events.
Income Replacement Benefit
[9]. As stated above, the accident occurred on June 13, 2012. The applicant submitted an Application for Accident Benefits and a Disability Certificate on June 22, 2012. She returned to work immediately following the accident on modified duties. On July 3, 2012 the respondent informed the applicant that she may be entitled to an income replacement benefit and asked for documentation to support such a claim. In October 2012, the respondent arranged for the applicant to be examined by Dr. Lui, a chiropractor retained by it. Dr. Lui examined the applicant on October 18, 2012 and determined that the applicant was capable of returning to full-time employment. On November 7, 2012, the respondent advised the applicant that she was not entitled to an income replacement benefit effective November 12, 2012.
[10]. The applicant has pointed to no other correspondence regarding the denial of the income replacement benefit. I note that the Explanation of Benefits form used to communicate the denial sets out the rights of appeal in clear and approachable language and I find it complies with the requirements set out in Smith v, Co-Operators. I find that, allowing five days for delivery by mail, the date of denial was, at the latest, November 12, 2012.
[11]. Through the period from the accident to 2016, the applicant commenced a number of proceedings at FSCO. Both parties agree that no proceeding was commenced either at FSCO or at this Tribunal for an income replacement benefit until January 5, 2017; in excess of four years after the benefit was denied. The application for an income replacement benefit to this Tribunal was clearly made after the two year limitation period had expired. I, therefore, dismiss it.
Three Treatment Plans.
[12]. The applicant seeks payment of three treatment plans dated December 20, 2012 in the amount of $2,932.73, October 4, 2013 in the amount of $3,139.97 and February 11, 2014 also in the amount of $3,139.97. The respondent asserts that these three treatment plans were denied on January 10, 2013, November 28, 2013 and February 25, 2014 respectively.
[13]. The applicant concedes in her submissions that the application to the Tribunal for these benefits was made after the expiration of the two year limitation period. At paragraphs 32 to 34 she states:
With respect to the Treatment Plan dated December 20, 2012, in the amount of $2,932. 73 for chiropractic treatment, the Applicant relies on the medical documentation provided, that the benefit is reasonable and necessary. The Plan was allegedly denied by an OCF-9 dated January 9, 2013. However, the Applicant should not be denied this treatment due to the failure of her previous legal counsel to mediate within 2 years.
With respect to the Treatment Plan dated October 14, 2013 in the amount of $3,139.97 for chiropractic treatment. This plan was allegedly denied November 28, 2013, and Krylov & Co [her previous counsel] failed to mediate within 2 years.
With respect to the Treatment Plan dated February 11, 2014 in the amount of $3139.97 for chiropractic treatment. The plan was allegedly denied February 25, 2014, counsel failed to mediate within 2 years.
[14]. Notwithstanding the use of the word “allegedly” in the above paragraphs, the applicant has not advanced evidence of any other date of denial. I find that these treatment plans were denied on the respective dates set out above. They were appealed to this Tribunal beyond the two year limitation period. The applicant has provided no authority for the proposition that the two year limitation period should be extended because her previous or current counsel failed to litigate in a timely manner.
ORDER
[15]. The applicant’s application for income replacement benefits and the three treatment plans noted above is dismissed.
[16]. The sole remaining issues for the hearing are payment for accounting services and interest. A two day in-person hearing was scheduled in the event that the applicant was successful at the preliminary issue hearing. As this was not the case, the Tribunal will schedule another case conference either before me or before the adjudicator that conducted the case conference in this matter in order to discuss a new hearing schedule and hearing format.
Date of Issue: June 30, 2017
D. Gregory Flude, Vice-Chair
Footnotes
- On the date of the accident, the 2 year limitation period for bringing claims was found in s. 281.1 of the Insurance Act, R.S.O. 1990 c. I.8 and in s. 56(1) of the Schedule.
- Smith v. Co-Operators General Insurance Co., [2002] S.C.R. 129 (Smith v. Co-Operators)