I.G. v. Security National Insurance Company, 2019 CanLII 110085

I.G. v. Security National Insurance Company

Citation: I.G. vs. Security National Insurance Company, 2019 ONLAT 19-000292/AABS

Tribunal File Number: 19-000292/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:

I.G.

Applicant

And

Security National Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

PANEL: Jesse A. Boyce, Adjudicator

APPEARANCES:

For the Applicant: Samia M. Alam

For the Respondent: Joseph P. Hogan

HEARD: In Writing on: October 16, 2019

OVERVIEW

1The applicant, I.G., was injured in a motor vehicle accident on November 11, 2014. She sought benefits from the respondent, Security National, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2Security National has paid out accident benefits to I.G. However, it denied I.G.’s claims for a non-earner benefit, attendant care and various medical benefits, and raised two preliminary issues to statute-bar I.G.’s application. I.G. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

3A case conference was held, but the parties could not resolve the issues in dispute, prompting this written hearing on the following preliminary issues.

PRELIMINARY ISSUE

4The following preliminary issues were identified in the Case Conference Report dated May 22, 2019:

i. Is the applicant barred from proceeding with her claim for attendant care benefits, non-earner benefits and medical benefits as she failed to notify the respondent of the circumstances giving rise to a claim for the benefits?

ii. Is the applicant barred from proceeding with her claim for attendant care benefits as she failed to submit an application for the benefit within the times prescribed by this Regulation?

RESULT

5I find I.G. is statute-barred from proceeding with her claim for attendant care but she may proceed with her claims for non-earner benefits and medical benefits before the Tribunal.

ANALYSIS

Is I.G. barred from proceeding with her claim for attendant care benefits, non-earner benefits and medical benefits as she failed to notify Security National of the circumstances giving rise to her claim for the benefits?

6I find that I.G. may proceed with her claims for non-earner benefits and medical benefits before the Tribunal. I find attendant care does not arise here given the window at issue and address her claim for attendant care benefits in greater detail in issue ii, below.

7Section 55(1)1 of the Schedule states that an insured may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a claim for benefits or has not applied for the benefit within the timelines prescribed by the Schedule. Section 32(1) provides that an insured who intends to apply for one or more benefits shall notify the insurer of their intention no later than the seventh day after the circumstances that gave rise to the entitlement, or as soon as practicable. Finally, s. 34 indicates that an insured’s failure to comply with a time limit set out in the Schedule does not disentitle that insured to benefits if they have a reasonable explanation for the delay.

8The parties’ positions are relatively straightforward.

9Security National argues that I.G. failed to notify it of the circumstances giving rise to her entitlement within seven days and therefore she has not complied with s. 32. Further, it argues that I.G. has not provided a reasonable explanation for why she waited until July 2016 to submit a treatment plan and until October 2016 before submitting her Application for Accident Benefits. It submits that I.G. had no intention of seeking accident benefits until after a slip and fall she had in 2015.

10In response, I.G. submits that the following reasons for her delay are reasonable: she did not know about the complex accident benefits scheme; Security National did not advise her of her opportunity to claim accident benefits since nobody spoke to her directly; there was a language barrier as English is not her first language; she thought her injuries would heal but instead, they progressively became worse; when she did claim accident benefits, Security National never asked for an explanation for the delay but instead, began adjusting the file such that she was removed from the MIG within a few months and Security National has approved approximately $40,000 in medical rehabilitation benefits; and the deterioration of her injuries is supported by Security National’s recent approval for a catastrophic file review. In sum, I.G. argues that these considerations prevail over the lack of prejudice to Security National, as there is no evidence of any prejudice to it and it has not led any evidence to indicate any prejudice. Thus, it is fair to relieve against the consequences of I.G.’s failure to comply with the notice period under s. 34.

11I agree with I.G. In a consumer protection scheme such as the Schedule, it is important that entitlement be determined on substantive rather than technical grounds.² While I find some of I.G.’s reasons for delay to be less compelling than others, I do find her explanation to be, on the whole, credible and reasonable and I agree that Security National has demonstrated limited prejudice in its ability to defend the claim if it was permitted to proceed.

12Generally, the purpose of s. 34 is to authorize a broad assessment of an insured person’s explanation for a delay, including objective and subjective factors pertaining to the reasons for the delay. Here, I find Security National’s claim that I.G. failed to notify it of the circumstances giving rise to her entitlement within seven days and therefore she has not complied with s. 32 to be somewhat disingenuous. In my view, the documentation in evidence—chiefly: the property damage file, the adjuster’s log notes and the fact Security National has paid out a significant amount of accident benefits to date—clearly indicates that Security National was very aware of the circumstances giving rise to I.G.’s claim, even if I.G. did not strictly comply with the requirements of the Schedule in providing notice. I find the fact that Security National has entertained all of I.G.’s claims for as long as it has without raising this preliminary issue to be a compelling indication that barring her under s. 55 vis a vis s. 32 is a rather flimsy defence from an insurer that has, by all accounts, been actively adjusting I.G.’s file since the accident.

13Indeed, while I find I.G.’s argument about the complexity of the Schedule and her English language skills to be unpersuasive grounds for delay, I find her explanation that she thought her injuries would heal over time but instead they got progressively worse to be quite reasonable. It is not uncommon for accident-related injuries to become progressively worse over time, nor is it out of the realm of the ordinary at the Tribunal for new impairments to arise at a later date. If an insured genuinely believes they can heal on their own without submitting a claim, that benefits both the insurer and the insured. To then bar access to benefits an insured may very well need on the basis that the impairments have not appeared or were not reported within seven days is, in my view, an unreasonable position and inconsistent with the underlying purpose of consumer protection legislation.

14I find further support for this position based on the fact that, when I.G. did finally claim accident benefits properly, Security National did not hold her to an explanation for the delay but instead asked for the OCF-1 and continued adjusting the file. I.G. was then removed from the MIG within a few months and after several Insurer’s Examinations. To date, Security National has approved approximately $40,000 in medical rehabilitation benefits. In my view, it is somewhat bizarre for Security National to now argue that it did not receive proper notice of the circumstances in the face of these facts and its own conduct, and especially so now considering its recent approval of a catastrophic file review due to I.G.’s deterioration.

15With regards to prejudice, Security National argues that the delay denied it opportunity to have I.G. assessed prior to her slip and fall in August 2015 and it is now in the position of having to assess whether her symptoms were caused by the accident or by her fall. While I am alive to Security National’s submission that the passage of time almost always leads to prejudice, I find the causation element—whether I.G.’s alleged impairments are as a result of the accident or, as it alleges, I.G.’s slip and fall—has been and will continue to be a live issue between the parties. I find the appropriate forum to determine causation is not here at the preliminary issue stage, but in a substantive hearing. If I.G. were barred from proceeding with her application to a substantive hearing, she would be deprived of that determination. In turn, proceeding to a hearing on the merits will afford Security National the opportunity to dig deeper on causation.

16For these reasons, I find I.G. is not statute-barred under s. 55 from proceeding with her application before the Tribunal as she has provided a reasonable explanation for delay and the prejudice to Security National is limited.

Is I.G. barred from proceeding with her claim for attendant care benefits as she failed to submit an application for the benefit within the times prescribed by this Regulation?

17Yes. I find I.G. is barred from proceeding with her claim for attendant care benefits as she failed to submit a Form-1 within the 104-week period.

18Section 42(1) of the Schedule states that an application for attendant care must be in the form entitled “Assessment of Attendant Care Needs” (“Form-1”) and be prepared and submitted by an occupational therapist or nurse. Section 20(2) provides that no attendant care is payable for expenses incurred more than 104 weeks after the accident. Finally, s. 42(12) indicates that if more than 104 weeks have elapsed since the accident, the insurer is not required to conduct a s. 44 Insurer’s Examination to determine an insured’s entitlement to attendant care.

19Security National’s position is simple: I.G. did not submit a treatment plan for an in-home attendant care assessment until January 2017, which is well passed the 104-week mark. Further, it argues that I.G. failed to provide proof that attendant care was incurred during the 104-week period. Finally, it submits that pursuant to s. 42(12), it was not required to conduct an examination under s. 44.

20In response, I.G. does not offer much of an explanation but argues that Security National denied her the opportunity to complete a Form-1 on three occasions. First, in January 2017, I.G. submitted a treatment plan for an in-home attendant care assessment which was denied in March 2017 based on her being in the MIG, even though she had been removed from the MIG in January 2017. Second, I.G. submits she applied a second time for an in-home attendant care assessment in November 2017 and was again denied. I.G. applied a third time in March 2019 and was denied based on the MIG again. In sum, I.G. argues that there is no Form-1 because Security National refuses to fund it. On this basis, she submits that she cannot be precluded from claiming a benefit she has no way of accessing funding for.

21I disagree. I find the facts on this issue are quite clear and favour Security National. The Schedule states that a Form-1 is required in order to be considered for attendant care within the 104-week period post-accident. As Security National points out, the 104-week mark elapsed on November 8, 2016. While I.G. argues that Security National was inconsistent in its determination on whether the MIG applied to her, the fact remains that she did not submit a treatment plan for an in-home assessment until over two months after the 104-week mark had elapsed but offers no explanation as to why. Further, I disagree with I.G.’s position that it is inequitable for Security National to refuse to fund the assessment and refuse to conduct a s. 44 examination because the Schedule is clear that it does not have to where an insured is late in applying for same. Simply put: if I.G. had submitted a Form-1 within 104-weeks, Security National would have been required under the Schedule to conduct an examination and fund the assessment. However, this did not occur. Finally, as I.G. has not provided evidence that she has even incurred attendant-care in the 104-week period, it would be, in my view, inequitable to allow her to proceed as the fault is entirely hers and no reasonable explanation—as she provided above for issue i—has been offered.

22For these reasons, I find I.G. is barred from proceeding with her claim for attendant care benefits as she failed to provide a Form-1 within 104-weeks.

CONCLUSION

23I.G. may proceed with her claims for non-earner benefits and medical benefits before the Tribunal but she is barred from proceeding with her claim for attendant care.

24The parties are ordered to contact the Tribunal to schedule a case conference resumption in order to address the remaining substantive issues and, if necessary, schedule a hearing on those issues.

Footnotes

1. 1O. Reg. 34/10.
2. 2Mader v. Hunter, 2004 CanLII 17834 (ON CA), [2004] O.J. No. 748 (C.A.), at para. 4.