K.B. v. TD Insurance Meloche Monnex, 2019 CanLII 101482

Licence Appeal Tribunal

Citation: K.B. vs. TD Insurance Meloche Monnex, 2019 ONLAT 18-008965/AABS

Tribunal File Number: 18-008965/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:

K.B.

Applicant

and

TD Insurance Meloche Monnex

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Julia V. Peguero, Counsel

For the Respondent: Amir Fazel, Counsel

HEARD: In Writing on April 23, 2019

OVERVIEW

1The applicant was injured in an automobile accident on July 6, 2010 and sought benefits from the respondent pursuant to O. Reg. 403/96, known as the Statutory Accident Benefits Schedule - Effective November 1, 1996 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2At the case conference, the respondent raised a preliminary issue asserting the applicant is statute-barred from bringing the application to dispute caregiving and housekeeping and home maintenance benefits pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act. The preliminary issue dispute is the subject of this hearing.

ISSUES

3The preliminary issue in this hearing is:

1. Is the applicant’s claim for caregiver and housekeeping and home maintenance benefits barred by the limitation period prescribed by the Schedule?

RESULT

4The applicant’s claims for caregiver and housekeeping and home maintenance benefits are barred by the limitation period prescribed by the Schedule.

BACKGROUND

5The applicant was involved in an accident on July 6, 2010 and applied for and received accident benefits from the respondent. The applicant produced an OCF-3 dated July 23, 2010 which indicated the applicant qualified for caregiver and housekeeping and home maintenance benefits (“the disputed benefits”), which the respondent paid to the applicant. On April 25, 2011, the respondent requested the applicant provide a new OCF-3 and attend two insurer’s examinations (“IEs”) to determine ongoing entitlement to the disputed benefits. The IEs were conducted and reports issued, and the assessors determined the applicant does not qualify for the disputed benefits. The reports were delivered to the applicant and the respondent ceased payment of the disputed benefits effective August 2, 2011.

TWO YEAR LIMITATION PERIOD

6Pursuant to section 56 of the Schedule, an insured person has two years form the date of the insurer’s proper refusal to pay to commence a dispute application. While it is clear the application has been filed more than two years after the respondent’s refusal to pay benefits, the applicant argues the two year limitation period ought not apply due to the deficiencies in the denial notice provided by the respondent.

7I have reviewed the submissions and evidence and find the notice provided by the respondent is proper and the applicant is statute-barred from disputing entitlement to the caregiver, housekeeping and home maintenance benefits. My reasons are as follows.

The requirement to request an OCF-3

8The applicant submits the notice is deficient because the respondent failed to request an OCF-3 prior to requesting the applicant’s attendance at an in-person insurer’s examination, and pursuant to section 37(1) of the Schedule. The respondent submits it complied with section 37(1) when it requested the OCF-3 in the same letter which advises the applicant of the pending in-person IEs.

9Section 37(1) (a) provides the respondent shall, in order to determine if the applicant is still entitled to a weekly benefit, request the applicant provide a new disability certificate. Section 37(1)(b) provides the respondent may also notify the applicant that it requires an IE.

10It is my finding the respondent complied with section 37(1) when it requested the applicant provide a new OCF-3 at the same time it arranged IEs. The Schedule does not require the respondent to wait for the applicant to produce an OCF-3 prior to arranging an IE. The process for determining if an insured person remains entitled to a weekly benefit only provides that the respondent shall request a new OCF-3 and may request the applicant attend an IE. While I agree it is mandatory for the respondent to request an updated OCF-3, the Schedule does not require the respondent to wait for the applicant to produce one prior to arranging IEs.

The requirement to provide reasons why benefits were denied

11The respondent submits the denial notice provided to the applicant satisfies the criteria mandated by section 37(6). The applicant disagrees and submits the respondent did not provide reasons for the denial. I find the respondent provided reasons for the denial, satisfying the requirements of section 37(6), my reasons are as follows.

12Section 37(6) of the Schedule provides four criteria the respondent must satisfy following the receipt of an IE report. It shall specify;

1. The specified benefits and expenses the respondent agrees to pay;

2. The specified benefits and expenses the respondent refuses to pay;

3. The reasons for the respondent’s decision; and

4. The date that payment of the specified benefit will be stopped, in the event the respondent determines the applicant is no longer entitled to a specified benefit.

13The respondent submits the reasons for the decision to deny the benefits are clearly laid out in the reports which accompanied the July 13, 2011 letter and were expressly referred to in the letter. The applicant submits it is not reasonable to be required to review 29 pages of medical reports in order to attempt to understand the findings, conclusion and why a termination of benefits was made. I disagree. I find the manner in which the respondent provided reasons to deny entitlement to the benefits may not have been ideal but do not fall below the requisite standards. A cursory review of the reports will find each of the two has a summary of the results of the assessments, a section labelled “Conclusions & Recommendations”, and answers to referral questions which include an opinion on whether or not the applicant has a substantial inability to engage in the tasks required for caregiving and housekeeping and home maintenance.

14The notice letter in question clearly advises the applicant that caregiving and housekeeping and home maintenance benefits will be stopped effective August 2, 2011. The language used to convey the reasons for the denial are: “The following is our explanation of the reasons you are not entitled to the benefit(s): Please see the enclosed Physiatry and Occupational Therapy reports”. The reports are included in the correspondence and the applicant is “…encouraged to review and discuss this report with your treating health practitioner”.

15On its own, the cover letter notifying the applicant of the denial of benefits does not provide sufficient reasons for the denial. However, the applicant was also provided with and referred to the two IE reports. I find the reports contain and satisfy the reasons requirement. Specifically, the reports document the physical and functional testing and results of the IEs and include the referral questions and answers. The resulting answers expressly state the assessor’s opinion is that the applicant does not suffer a substantial inability to engage in the caregiving and housekeeping and home maintenance activities which the applicant was engaged in at the time of the accident.

16Lastly, I see no provision in the Schedule or in the caselaw provided by the parties that provides the respondent must include the reasons for the denial in the covering letter and not in the enclosed reports. I understand this is not an ideal practice however, including the reasons for the decision in the enclosed report does not detract from the main purpose of the notice; to notify the applicant of a denial of benefits, the reasons for the denial, and the pending stoppage of the benefits.

The requirement to notify the applicant’s health practitioner

17The applicant submits the denial of benefits is invalid because the respondent failed to deliver copies of the IE reports to the applicant’s treating physician in accordance with section 37(5). The respondent contends it is not required in this situation as the applicant did not submit an updated OCF-3 and, therefore, there is no health practitioner to send the documents to.

18I find the respondent is not obligated to send the IE reports to a health practitioner because the applicant did not provide an updated OCF-3 and therefore, there is no health practitioner to send the reports to. The applicant’s position is flawed for two reasons; first, it could result in the respondent disclosing personal health information to a third party who may no longer have a relationship with the applicant. Second, the Schedule refers the sending a copy of the IE report to the “…health practitioner who completed the disability certificate” (emphasis mine). This requirement comes after the provision which states the respondent must request a new disability certificate, which leads me to conclude it discusses the new disability certificate requested pursuant to section 37. If the intention of the legislation was to have the respondent send the reports to the health practitioner who completed the most recent disability certificate, it would specify so.

THE LAT ACT

19The limitation period may be extended through the application of section 7 of the LAT Act. This provision allows the Tribunal, in certain circumstances, to extend the period for filing an application. The respondent submits this is not the appropriate case to apply section 7 of the LAT Act because the applicant did not show a bona fine intention to dispute the denial within the limitation period. In response, the applicant chose not to invoke this provision and not to dispute the respondent’s position.

20I find no evidence of a bona fide intention to dispute the denials within the limitation period. The appeal relies entirely on a technical issue from more than 7 years prior to filing the appeal and not on the merits of the applicant’s entitlement to the benefits. The length of delay is significant and the respondent would be subject to significant prejudice if forced to defend such an out-dated claim.

CONCLUSION

21The applicant is statute-barred from adjudicating entitlement to caregiver and housekeeping and home maintenance benefits.