R.A. v. Intact Insurance Company, 2017 CanLII 77360

Date: 2017-11-10

Tribunal File Number: 16-003508/AABS

Case Name: 16-003508 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:

R. 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

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 May 23, 2014 for non-attendance at the Insurer Examination (the “IE”). The application was filed November 4, 2016, more than 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 takes the position that there has not been a proper denial of the ACB as 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 at this preliminary issue hearing is:

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 2 years of the respondent’s refusal to pay the attendant care benefit, as the examination was not properly constituted and the denial was not clear and unequivocal.

BACKGROUND

7On March 13, 2014, the respondent sent a letter² to the applicant acknowledging receipt of In Home Occupational Therapy Assessment of Attendant Care (ACB) Needs (Form 1)³ received March 5, 2014. The respondent indicated in its letter that the applicant was entitled to an ACB in the amount of $728.42 per month. It also advised the applicant the respondent required its own examination (the “IE”) pursuant to s. 44 of the Schedule and stated an appointment was enclosed with the letter. No Notice of Examination (“NOE”) dated March 13, 2014 was attached to the letter or the attachments submitted into evidence. The letter also stated that the applicant was required to attend the IE and should she fail to do so a determination may be made that she is not entitled to receive the ACB.

8The respondent scheduled a number of IE appointments for the applicant but none were for the purpose of determining her entitlement to an attendant care benefit. It is the respondent’s failure to schedule an appointment specifically related to an attendant care benefit that is at issue in this matter.

9The NOE⁴ dated March 20, 2014 refers to an IE for May 6, 2014 at 1:30 p.m. The NOE however does not refer to the ACB but states the IE is to assess for medical benefits claimed in an OCF-18 submitted March 7, 2014 by Ms. Stevens in the amount of $5,698.39. Its purpose is to assess whether the claimed medical benefit was reasonable and necessary in respect to the injuries suffered in the accident. The NOE is difficult to read. None of the boxes are checked off. It states the applicant is required to attend an IE on May 6, 2014 at 1:30 p.m. with Matt Sutherland, an OT.

10The applicant maintains the NOE dated March 20, 2014, indicates an IE was to assess medical benefits and not ACB benefits. Only one notice of examination was ever delivered to the applicant. As such, no appointment for an assessment of the need for an attendant care benefit was ever scheduled. The May 6, 2014 assessment was scheduled to address an IE for a medical benefit in the amount of $5,698.39.⁵

11Counsel for the applicant acknowledged in their letter to opposing counsel on April 16, 2014 that the applicant would be in attendance at the In Home Assessment IE scheduled for May 6, 2014 at 1:30 a.m.⁶

12Both parties agree the applicant did not attend an IE scheduled for May 6, 2014 at 1:30 p.m.⁷

13The respondent sent a letter dated May 23, 2014⁸ (the first letter) to the applicant denying the applicant’s claim for benefits. It referred to the insurer’s previous letter of March 20, 2014 and the fact that arrangements had been made for the applicant to attend several IEs including an IE on May 6, 2014 at 1:30 pm. The letter stated that as the applicant did not attend the IE’s, she was not entitled to the goods and services.

14The respondent sent a second letter dated May 23, 2014⁹ to the applicant. This letter refers to the respondent’s previous letter of March 13, 2014 and indicated that arrangements had been made for the applicant’s participation in an IE scheduled for May 6, 2014 to assess her continued entitlement to ACB benefits. The letter indicated that the respondent had received notice that the applicant did not attend the IE. Based on this and section 42(14) of the Schedule, the respondent had determined that the applicant was no longer entitled to receive the ACB. The ACB was suspended effective May 6, 2014.

15The letter of May 23, 2014 also stated that no benefit will be payable until the applicant participated in a re-scheduled IE. A final benefit cheque was issued for $896.38 to cover the ACB until May 6, 2014. She was advised that under section 42(15) that if she subsequently attended the re-scheduled IE, the insurer would reconsider her entitlement to the benefit. If she was entitled, they would resume payment. She was also provided the opportunity to provide a reasonable explanation for non-attendance. The letter included the 2 year limitation period warning.

POSITION OF THE PARTIES

16Pursuant 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 their dispute resolution options in straightforward and clear language.¹⁰

17The respondent submits there should be no dispute that the refusal was valid and proper¹¹ and the refusal was clear and unequivocal. The respondent provided reasons for the respondent’s decision that the applicant was no longer entitled to the ACB in the letter of May 23, 2014. The language made it clear and the applicant would have known that she would not get any further ACB.

18The proper legal test for the commencement of the limitation period is a clear and unequivocal refusal of benefits by a respondent and reasons that allow an insured to challenge the refusal.¹²

19The respondent maintains it has done both. The letter of May 23, 2014 provided a valid and proper refusal to pay the ACB. It included straightforward and clear language.

20The May 23, 2014 letter 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 the ACB or 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,¹³ the letter provided the applicant with notice of rights to mediation, followed by litigation or a neutral evaluation and the letter included notice and warning about a two year limitation period.

21Accordingly, the respondent argues, the May 23, 2014 letter constitutes a proper refusal, which triggered the two year limitation period.

22The applicant claims she 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.¹⁴

23The applicant maintains that the May 6, 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 attending the IE because it was never constituted properly.

24The applicant argues that the May 23, 2014 letter regarding the ACB 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 re-scheduled IE, the respondent would reconsider entitlement.¹⁵

25The applicant relies on the case of N. (T.) v Personal Insurance Co. of Canada¹⁶ where the denial 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.

26In this case, the applicant maintains that by inviting the applicant to contact the respondent to re-schedule the missed assessment and then telling the applicant that her entitlement would be reconsidered, the respondent used language that invited the possibility of future payment.

27The applicant further relies on the case of Daniel v. RBC General Insurance¹⁷ where it has been 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 period. The two year limitation did not start because the refusal indicated 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 Daniel, as the applicant was informed her ACB would be reconsidered if she attended the missed assessments.

ANAYLSIS AND FINDINGS

28I find that the IE was not properly constituted. There was not sufficient notice of the IE for an ACB as required under sections 42(3) and (4) and 44(5) of the Schedule. First, the NOE did not state the IE was to address the entitlement to the ACB. The NOE dated March 20, 2014 stated an IE was to address a claim for medical benefits for the amount of $5,698.39. Counsel acknowledged the applicant would attend an In Home Assessment on May 6, 2014 at 1:30 p.m. but no NOE was submitted into evidence stating that the examination was to assess an ACB. Second, the May 23, 2014 letter refers to the previous letter of March 13, 2014, but as mentioned above, no NOE was attached to the letter. Only one NOE was delivered to the applicant. I agree with the applicant that no notice, as required by sections 42(3) and (4) and 44(5), was provided that an IE was being scheduled to assess the ACB. As such, the IE for ACB was not properly constituted. The respondent did not address this point in its submissions.

29Alternatively, if I am wrong in respect to the finding about notice, I find the respondent’s denial was not clear and unequivocal. There is a two part test that must be met to establish that the denial was valid and proper. The respondent bears the burden of proof on a balance of probability.

30The May 23, 2014 letter correctly outlines the dispute resolution options as required in the two part test and as such meets part two of the test.

31As to part one of the test, the letter of May 23, 2014 refers to a suspension of the ACB benefit which could be reconsidered if the applicant attended the re-scheduled IE. The letter also stated no benefit will be payable until the applicant participated in a re-scheduled examination. From this perspective, I find the denial was clear in stating the benefit would not be paid. The letter sets out a stoppage date and as such the applicant would know she was no longer entitled to receive the ACB as of May 6, 2014.

32However, I find the denial is not unequivocal because the letter not only states the payment is stopped but it also states the payment is suspended until the applicant attended the re-scheduled IE. I agree with the applicant that the language used in the denial is similar to that in the Daniel case where it was found that a denial that merely suspends a benefit as opposed to terminating it does not start the limitation period running. I find the reasoning in Daniel persuasive in the manner in which it distinguishes between a denial and a suspension. The denial was not clear and unequivocal and did not start the running of the limitation. The two year time limit did not start because the refusal letter said payment would be reconsidered once the insured re-attended an IE.

33Accordingly, the applicant is not statute barred from pursuing her claim for ongoing payment of the attendant care benefits. The claim for ACB can proceed to a hearing.

Released: November 10, 2017

___________________________

Thérèse Reilly, Adjudicator

Footnotes

1. 1O. Reg. 34/10, The Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2. 2Tab 2 attached to the documentary brief of the respondent dated May 30, 2017 with letter for submissions dated June 1, 2017. The respondent also submitted submissions with attached documents dated June 7, 2017.
3. 3Tab 2, written submissions of the applicant.
4. 4Tab 4, attached to the documentary brief of the respondent dated May 30, 2017. Tab 6, written submissions of the applicant.
5. 5Written submissions of the applicant, paragraphs 13, 14, 18.
6. 6Ibid, tab 19, letter dated April 16, 2014.
7. 7Ibid. Written submissions of the applicant, paragraph 18. Tab 6, documentary brief dated May 30, 2017, letter to applicant dated May 23, 2014.
8. 8Tab 9, written submissions of applicant.
9. 9Tab 6, documentary brief of the respondent dated May 30, 2017. Tab 1 and paragraphs 9 and 23, respondent written submissions dated June 7, 2017. Tab 10, and paragraph 20, written submissions of the applicant.
10. 10Smith v. Co-Operators General Insurance Company, 2002 SCC 30, 2002 S.C.C. 30, at para 14, tab 8.
11. 11Paragraphs 25, 33 and 34, written submissions of the respondent dated June 7, 2017.
12. 12Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLll 2551 (Ont. C.A.), at para. 8, Tab 9.
13. 13Bustamante v. Guarantee Co. of North America, 2015 ONCA 530.
14. 14Paragraphs 53 and 355, written submissions of the applicant.
15. 15Paragraphs 64 and 65, written submissions of the applicant.
16. 16N. (T.) v. Personal Insurance Co. of Canada, 2012 FSCO A06-000399.
17. 17Daniel v. RBC General Insurance, 2013 FSCO, A09-001163.