Tribunal File Number: 18-005114/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
G.B.
Applicant
and
Allstate Insurance Company
Respondent
DECISION ON A PRELIMINARY ISSUE
ADJUDICATOR: Nidhi Punyarthi
APPEARANCES:
Counsel for the Respondent John Choe
Counsel for the Applicant Allen Wynperele
Heard in writing: January 7, 2019
OVERVIEW
1The applicant was involved in an accident on February 6, 2014, and sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied the applicant’s claim for benefits, and the applicant applied to the Licence Appeal Tribunal (“Tribunal”).
2The Tribunal held a case conference on October 16, 2018. At the case conference, Adjudicator Ferguson ordered that the following preliminary issue be determined at the outset:
i. Is the applicant barred from appealing the respondent’s denial of her claim for attendant care benefits (ACBs), set out as issue#2 in paragraph [7] of the case conference order, under s.56 of the Schedule because her appeal was filed more than two years after the insurer refused to pay the benefit claimed?
3This preliminary issue proceeded to a written hearing before me.
RESULT
4The applicant filed her application for attendant care benefits after the time period prescribed in s. 56 of the Schedule.
5However, pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G. (“LAT Act”), the applicant’s time to apply to the Tribunal for attendant care benefits is extended to the date she filed her application with the Tribunal. She can therefore proceed with her application.
ANALYSIS
A. Missed time period to appeal under Section 56
6Under s. 56 of the Schedule, if an insurer refuses to pay a benefit, an insured person has two years from the date of that refusal to apply to the Tribunal.
7The applicant’s attendant care benefits for the period 104 weeks post-accident (or “Post-104 Attendant Care Benefits”) were denied by the respondent through an Explanation of Benefits dated January 12, 2016 (the “EOB”). She applied to the Tribunal to dispute this denial on May 18, 2018.
8The applicant was, therefore, late in applying to the Tribunal with respect to her claim for Post-104 Attendant Care Benefits. The two-year limitation period had started to run on January 12, 2016, and the EOB contained all the information required by law. The applicant’s lawyer, in addition, had the relevant and necessary information to apply in a timely manner as of September 9, 2016.
9The paragraphs that follow explain these findings in more detail.
(I) Availability of information to appeal the benefits on time
10The applicant initially received attendant care benefits up to 104 weeks after the accident (“Pre-104 Attendant Care Benefits”). She received a total amount of $6,505.64 in Pre-104 Attendant Care Benefits.
11On January 12, 2016, the respondent issued the EOB to indicate that the applicant would no longer receive attendant care benefits after the 104-week mark from the accident, or Post-104 Attendant Care Benefits. The EOB explained that the reason the attendant care benefits stopped at the 104-week mark was that the applicant was not determined to be catastrophically impaired.1
12The parties disagree on whether the EOB was actually received by the applicant around January 12, 2016. However, the parties agree on the following facts:
i. Sometime after January 12, 2016, the applicant retained Mr. Allen Wynpere