Tribunal File Number: 17-003419/AABS
Case Name: 17-003419 v Unifund Assurance 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.S.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
Counsel for the Applicant: Robert G. Plate
Counsel for the Respondent: Alexander Hartwig
HEARD: Written Hearing: October 18, 2017
Overview:
1The applicant, M.S., was involved in an accident on June 10, 2010 and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective November 1, 19961 (the “Schedule”). The applicant’s claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
2This preliminary issue hearing was scheduled at the case conference which took place on August 28, 2017.
Preliminary Issue:
3The issue to be decided at this hearing is:
- Is the applicant precluded from proceeding with a claim for income replacement benefits, as she failed to dispute the denial of the benefit within the two year limitation period?
Result:
4The applicant is statute barred from disputing the denial of the income replacement benefit.
5The respondent is not entitled to its costs for this proceeding.
BACKGROUND:
6By way of background, a brief synopsis of the facts and correspondence which are relevant to this case will follow.
7At the time of the accident the applicant was working at [a hospital] (the “full-time” job), as well as [a long-term care facility] (the “part-time job”).
8The applicant was unable to return to her part-time job following the accident and applied for income replacement benefits (IRBs).
9IRBs were paid to the applicant at the rate of $400.00 per week for the period of June 17, 2010 to March 1, 2011.
10A Disability Certificate (OCF-3), dated August 31, 2010, completed by Dr. Kolev, was submitted to the respondent, which suggested the applicant could return to her part-time job on modified duties.
11A letter sent to the applicant by the respondent, dated September 31, 2010, acknowledged receipt of the OCF- 3 and asked the applicant whether she could indeed return to her part-time employment on modified duties.
12The respondent sent a letter dated November 19, 2010 to the applicant notifying her that she was required to attend assessments under s. 35, 37 and 22 of the Schedule.
13In a letter dated December 13, 2011, the respondent wrote to the applicant confirming that she had advised the respondent that she was unable to complete her full-time job along with her part-time job. Within the same letter, the respondent requested a new OCF-3 regarding her inability to work at her full-time job. The respondent also notified the applicant that the previously scheduled assessments would proceed as scheduled.
14The insurer’s assessments took place on January 7 and 25, 2011.
15By way of letter and Explanation of Benefits (OCF-9) dated February 15, 2011, the respondent notified the applicant that she was no longer entitled to the IRB she was receiving, effective March 1, 2011.
16The respondent sent a letter to the applicant dated April 20, 2011, with respect to her claim for IRBs for her full-time job. As the respondent was of the understanding that the applicant was receiving 100% of her salary for the time she missed at her full-time job, the respondent requested a Declaration of Post-Accident Income & Benefits (OCF-13) and an Employer’s Confirmation Form (OCF-2), to confirm.
17A letter and OCF-9 dated June 14, 2011 were sent to the applicant by the respondent, advising that it received the OCF-2 from her full-time employer which confirmed she was receiving $1,251.00 per week from her collateral carrier. The respondent notified the applicant that as such, no IRBs were payable for the