Citation and Parties
Tribunal File Number: 19-000226/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:
R.R.
Applicant
and
State Farm Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Jacqueline Ozor, Counsel
For the Respondent: Candace Mak, Counsel
HEARD: In Writing on August 5, 2019
OVERVIEW
1The applicant was injured in an automobile accident on October 19, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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.
ISSUES
2The disputed claims in this hearing are:
Is the applicant barred from proceeding with a claim for income replacement benefits (IRBs) in the amount of $343.00 per week for the period of March 30, 2016 to April 1, 2017?
Is the applicant barred from proceeding with a claim for a chiropractic treatment plan recommended by Mackenzie Medical Rehabilitation in the amount of $1,926.00, dated January 26, 2016 and denied February 11, 2016?
Is the applicant barred from proceeding with a claim for a chiropractic treatment plan recommended by Mackenzie Medical Rehabilitation in the amount of $1,494.50, dated March 10, 2016 and denied March 24, 2016?
RESULT
3The applicant is barred from proceeding with the three disputed claims pursuant to section 56 of the Schedule.
BACKGROUND
4The applicant was involved in an accident on October 19, 2015 and applied for and received statutory accident benefits from the respondent. The applicant engaged in treatment within the Minor Injury Guideline (MIG) and claimed entitlement to IRBs, both of which the respondent funded.
5The applicant sought additional medical benefits beyond the MIG by way of a treatment and assessment plan dated January 26, 2016. The respondent denied funding for the treatment by letter dated February 11, 2016 and advised that an insurer’s examination (IE) would be conducted to assess the applicant.
6An insurer’s examination (IE) was conducted by Dr. S. Baker, physiatrist, producing a report dated March 18, 2016. The report concluded the applicant suffered predominantly minor injuries, was subject to the MIG and the $3,500.00 funding limit and was not substantially unable to perform her essential tasks of employment.
7The report and the respondent’s decision to deny IRBs was delivered to the applicant by letter dated March 23, 2016, with an IRB stoppage effective on March 30, 2016. The same report and a decision to deny funding for the treatment plan dated March 10, 2016 was delivered to the applicant by letter dated March 24, 2016.
THE 2 YEAR LIMITATION PERIOD
8I find the applicant is statute-barred from claiming entitlement to the disputed benefits because she has failed to dispute the respondent’s refusals to pay the benefits within 2 years. My reasons are as follows.
9Section 56 of the Schedule holds the applicant must commence an application to dispute the respondent’s refusal to pay a benefit within 2 years. The respondent refused to pay benefits in letters dated February 11, March 23, and March 24, 2016. This application disputed the respondent’s refusals is dated January 8, 2019, and nearly 3 years after the respondent’s refusals to pay.
THE APPLICANT IS NOT EXEMPT FROM THE LIMITATION PERIOD
10While there are some exceptions to the 2 year limitation period, I find the applicant has not established that any exception applies.
11I find the respondent’s refusals to pay the benefits claimed were clear and unequivocal. As the respondent noted in its submissions, the 2 year limitation period clock begins once the applicant receives a clear and unequivocal refusal to pay. The first refusal occurred in the letter dated February 11, 2016, where the respondent advised the applicant it refuses to pay for the treatment plan dated January 28, 2016 because the respondent considered the applicant to be subject to the MIG and the proposed plan did not conform to the MIG treatment protocols. The second refusal occurred in the letter dated March 23, 2016, where the respondent advised it would stop payment of IRBs because the opinions in March 18, 2016 IE report and a previous functional abilities evaluation report which found the applicant was not substantially unable to perform the essential tasks of her employment. The last refusal occurred in a letter dated March 24, 2016, where the respondent refused to fund the March 10, 2016 treatment plan, advised it found the applicant’s injuries were minor in nature and subject to the MIG, and the applicant had exhausted the funding limit within the MIG. All three refusals included a notice advising the applicant of her right to dispute the refusal and the 2 year limitation period.
12The Explanation of Benefits dated August 18, 2017 does not extend the limitation period. The letter was sent in response to the applicant’s submission of a new disability certificate. It notes the respondent is maintaining a stoppage of IRBs pursuant to an Explanation of Benefits dated March 23, 2017 however, this is a typographical error and does not override the initial denial dated March 23, 2016. I find this error does not extend the