M. A. v. Intact Insurance Company, 2017 CanLII 76933

Date: 2017-11-02

Tribunal File Number: 16-003510/AABS

Case Name: 16-003510 v Intact Insurance Company

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:

M. A.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Catherine Taylor, Counsel

For the Respondent: Daniel Himelfarb, Counsel

Heard In Writing: July 5, 2017

REASONS FOR DECISION – PRELIMINARY ISSUE AND ORDER

OVERVIEW

1The applicant was injured in a motor vehicle accident on May 20, 2013 and sought accident benefits pursuant to the Schedule.¹ One of the benefits claimed in the application filed with the Licence Appeal Tribunal (the “Tribunal”) is an attendant care benefit. The applicant received attendant care benefits until payment of the benefit was stopped by the respondent due to non-attendance at an insurer examination.

2The respondent asserts that its refusal was clear and unequivocal. It properly denied the attendant care benefit (ACB) on June 16, 2014 for non-attendance at the Insurer Examination (the “IE”). The application was filed November 4, 2016, two years after the refusal to pay the ACB. The claim for ACB is statute barred pursuant to section 56 of the Schedule.

3The applicant denies there is a proper denial of the ACB. The refusal was not clear and unequivocal. The limitation period was not triggered by a refusal to pay the benefit. Further, the applicant did not miss the IE as the IE was not properly constituted.

4Evidence was presented in writing by both parties consisting of written submissions with applicable medical reports and records.

ISSUE

5The issue in dispute for the preliminary issue hearing is as follows:

i. Is the applicant’s claim for attendant care benefits statute barred because the application for attendant care benefits was filed more than 2 years after the respondent’s refusal to pay the attendant care benefit pursuant to section 56 of the Schedule?

RESULT

6The applicant’s claim for attendant care benefits is not statute barred pursuant to section 56 for failure to file the application within two years of the respondent’s refusal to pay the attendant care benefit. The denial of the attendant care benefit was not proper as the denial was not clear and unequivocal.

BACKGROUND

7On January 15, 2014, the respondent sent a letter to the applicant requesting an In Home Occupational Therapy Assessment of Attendant Care Needs (Form 1) for the ACB.² On March 5, 2014, the applicant submitted a Form 1 completed by her Occupational Therapist, (the OT) for ACB (Tab 1) in the amount of $7,260.16 per month. The Form 1 is dated February 18, 2014. The applicant also submitted an OCF-18 on March 7, 2014 for the ACB benefit and other benefits.³

8On March 18, 2014, the respondent sent a letter to the applicant in response to the OCF-18 for ACB submitted on March 7, 2014. The letter stated it enclosed a notice of examination for an IE to address the benefits claimed. The letter stated that if the applicant did not attend the IE, she may not be entitled to the goods and services claimed.⁴ I note the Notice of Examination that was stated to be attached to the letter was not attached to the copy of the letter submitted as evidence by the applicant. The letter of March 18, 2014 to the applicant stated that pursuant to section 44 of the Schedule, the applicant’s participation was required at an IE to determine her ongoing entitlement to the ACB benefit.

9On April 24, 2014, the respondent sent a letter to the applicant’s counsel with Notice of Examinations (NOEs) attached. The letter stated the enclosed NOE was to assess the ACB as per the submitted Form 1 and was scheduled for May 1, 2014 at 3:00 p.m. One of the attached NOE scheduled an IE for May 1, 2014 at 3 pm and stated it was for medical benefits. The second NOE attached to the letter scheduled an IE with the Insurer OT for May 1, 2014 at 3:00 p.m.⁵ and refers to the submitted OCF-18 and states the reason for the IE is to assess the claim for an ACB benefit. Although the respondent checked off the box for rehabilitation and medical benefits, the form stated it was to assess the claim for the ACB.

10Applicant’s counsel wrote two letters to the respondent acknowledging the request for the IE on May 1, 2014. On April 4, 2014 counsel wrote to the respondent acknowledging the request for the IEs with the respondent’s OT and advised the applicant would be in attendance at the IE scheduled for 3 pm May 1, 2014 for medical benefits.⁶ The letter of April 16, 2014 acknowledges the NOE for the Form 1 for ACB and confirms the applicant will be available for the IE scheduled to assess the ACB.⁷

11The applicant did not attend the IE on May 1, 2014.

12On June 16, 2014, the respondent by letter⁸ advised the applicant that her ACB benefit was suspended effective May 2, 2014 for non-attendance at the May 1, 2014 IE. The letter stated the respondent had made arrangements for her participation in an IE to assess her continued entitlement to ACB benefits. The IE was scheduled for May 1, 2014 at 3:00 p.m. The respondent had received notice that she did not attend. Based on this and section 42 (15) of the Schedule, she was no longer entitled to receive ACB which was suspended effective May 2, 2014. The letter stated that no benefit will be payable until the applicant participates in a rescheduled examination. If she did so, the respondent would reconsider her entitlement to continue the benefit. The letter included the 2 year limitation period warning. The letter also stated that in accordance with section 42 (15) of the Schedule, if she subsequently attended this rescheduled IE, the respondent would reconsider her entitlement to the ACB.

POSITION OF THE PARTIES

13Pursuant to section 56 of the Schedule, an application in respect of an accident benefit has to be commenced within two years from the date of an insurer’s refusal to pay a benefit. The two year limitation period starts when an insurer provides an insured with a refusal to pay which is clear, unequivocal and advises the applicant of the dispute resolution options in straightforward and clear language.⁹

14The respondent’s position is that it validly denied the ACB claim. The refusal was clear and unequivocal. It provided reasons for the respondent’s decision that the applicant was no longer entitled to the attendant care benefits. The language made it clear and the applicant would have known that she would not get any further attendant care benefits.

15The proper legal test for the commencement of the limitation period is a clear and unequivocal refusal of benefits by an respondent and reasons that allows an insured to decide to challenge the refusal.

16The respondent maintains it has done both. The June 16, 2014 letter provided a valid and proper refusal to pay attendant care benefits. It had straightforward and clear language.¹⁰

17The refusal letter sent to the applicant also included the relevant statutory references, as well as step-by-step information with respect to the procedure for engaging in the dispute resolution process. The respondent submits that there could be no confusion that the respondent was refusing to pay attendant care benefits or as to why it was refusing to do so. The letter of denial also included the warning about the two year limitation period. Like the explanation of benefits in Bustamante v. Guarantee Co. of North America,¹¹ the letter provided the applicant with notice of rights to mediation, followed by litigation or a neutral evaluation and the notice stated the warning about a two year limit.

18Accordingly, the correspondence to the applicant constitutes a proper refusal, which triggered the two year limitation period.

19The applicant claims the applicant did not miss the two year limitation period because 1) the IE was never properly scheduled in the first place and 2) the applicant did not receive a clear and unequivocal denial of the ACB.

20The applicant maintains the May 1, 2014 IE was to address medical benefits. It was not clear it was for ACB and as such the IE for ACB was not properly constituted. The applicant never actually missed the IE because it was never constituted properly.

21Second, the denial letter from the respondent is confusing and equivocal because it does not terminate the benefit indefinitely or set out a stoppage date.

If the applicant did subsequently attend the rescheduled IE, the respondent would reconsider entitlement.

22The applicant asserts this is not a case where the refusal sets out a clear termination or stoppage date. The letter invited the applicant to reschedule, signaling that payment was still a possibility. The applicant relies on the case of N. (T.) v. Personal Insurance Co. of Canada¹² where the denial delivered was determined to fall short of the requirements to bar proceedings because the refusal letter told the insured that information was being reviewed by an accountant in respect of an IRB and further invited the insured person to provide more information. It was held that the respondent by its actions was signaling to the applicant that payment was still a possibility.

23In this case, the applicant maintains that by inviting the applicant to contact the respondent to reschedule the missed assessment and then telling her that her entitlement would be reconsidered, the respondent used language that invited the possibility of future payment.

24The applicant further relies on the case of Daniel v. RBC General Insurance¹³ where it was held that where a denial merely suspends a benefit as opposed to terminating it, the denial is not clear and unequivocal to start the running of the limitation. The two year time limit did not start because the refusal said payment would be reconsidered, once the insured re-attended for a missed assessment. The language of the denial letter sent to the applicant is similar to that in the case of Daniel v. RBC General Insurance as the applicant was informed her attendant care benefit would be reconsidered if she attended the missed assessments.

ANAYLSIS AND FINDINGS

25I do not accept the position that the applicant did not miss the IE because it was not properly constituted. I find the NOE was properly scheduled. The NOE sent with the March 18, 2014 letter stated the reason for the IE was the assessment of the ACB. In total three NOEs were sent to the applicant and two were for the IE scheduled for May 1, 2014 at 1:30 p.m. The NOE clearly stated that the IE was to address the ACB claim. These were sent to the applicant. Her counsel confirmed receipt of the NOE for the ACB by letter dated April 16, 2014 and acknowledged the applicant would be attending. There is no basis to hold the IE was not properly scheduled when the NOE stated such and counsel then actually acknowledged the scheduled appointment for the IE and the reason was to assess the ACB. Counsel acknowledged this in its letter to the respondent dated April 16, 2014. I find the IE for the ACB was properly constituted.

26Was the respondent’s denial clear and equivocal? There is a two part test that must be met to establish the denial was valid and proper. The respondent bears the burden to prove that on a balance of probability.

27The June 16, 2014 letter correctly outlines the dispute resolution options as required in the two part test and as such the letter meets part 2 of the two part test.

28As to part 1 of the test, the letter of June 16, 2014 refers to a suspension of the ACB benefit which could be reconsidered if the applicant attended the rescheduled IE. The letter also stated “No benefit will be payable until you participate in a rescheduled examination”. The letter made it clear the ACB would not be payable and the benefit was stopped. The denial letter also states the payment is suspended until the applicant attended the rescheduled IE and the respondent refers to section 42 (15) of the Schedule.

29I find the denial is not clear and unequivocal. It states the payment is stopped but it also states the payment is suspended until the applicant attended the rescheduled IE. I agree with the applicant that the language used in the denial is similar to that as appeared in the Daniel case where a denial merely suspends a benefit as opposed to terminating it. Similar to the Daniel case, the respondent proceeded to outline to the applicant the provisions of section 42 (15) of the Schedule stating that if the applicant subsequently attended the rescheduled IE, it would reconsider entitlement and if it was determined that the applicant was eligible, then it would resume payment of the benefit. This signalled to the applicant that there was a possibility of payment and the insurer had not made a final determination that the benefit was not payable.

30I find the reasoning in Daniel persuasive in the manner in which it distinguishes between a denial and a suspension. The denial is not clear and unequivocal and does not start the running of the limitation. The two year time limit did not start because the refusal said payment would be reconsidered, once the insured re-attended an IE.

31Accordingly, the applicant is not statute barred from pursuing their claim for ongoing payment of the attendant care benefits. The claim for ACB can proceed to a hearing.

Released: November 2, 2017

___________________________

Thérèse Reilly, Adjudicator

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2. 2Tab 15, Applicant written submissions.
3. 3Tab 17, Applicant written submissions.
4. 4Tab 16, Applicant written submissions.
5. 5Tab 20, Applicant written submissions.
6. 6Tab 18, Applicant written submissions.
7. 7Tab 22, Applicant written submissions.
8. 8Tab 3, Written submissions of the respondent.
9. 9Smith v. Co-Operators General Insurance Company, 2002 SCC 30, 2002 S.C. C. 30 at para 14, Tab 8.
10. 10Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLll 2551 (Ont. C.A.) at para 8, Tab 9.
11. 11Bustamante v. Guarantee Co. of North America, 2015 ONCA 530, para 13, Tab 11.
12. 12N. (T.) v. Personal Insurance Co. of Canada, 2012 FSCO A06-000399.
13. 13Daniel v. RBC General Insurance, 2013 FSCO A09-001163.