G.S. v. Unifund Assurance Company, 2019 CanLII 34594

Licence Appeal Tribunal

Tribunal File Number: 18-009275/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

G.S. Applicant

and

Unifund Assurance Company Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

Representative for the Applicant: Elvis Viskovic

Representative for the Respondent: Dave Dhillon

Held by Teleconference Hearing: March 14, 2019

OVERVIEW

1The applicant was injured in a motor vehicle accident on July 7, 2014. She applied for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”).¹

2The respondent declined to pay for the cost of several assessments, as it found her injuries to be minor in nature. As such, she would be held to the financial and treatment limits of the Minor Injury Guideline (the “MIG”). Since the applicant disagreed with this finding, she applied to the Tribunal.

3During the hearing, the applicant confirmed that two of these four denied treatment plans have been withdrawn, i.e., only the psychological and orthopaedic assessments remain in dispute.

4Before addressing the denial of these remaining treatment plans, I must first determine whether the applicant has violated the limitation period found in s. 56 of the Schedule. Specifically, the respondent argues that, since the applicant did not challenge the denial of these two treatment plans within the required two year period, she is now barred from proceeding with her application.

5The respondent has also requested costs from the applicant.

6After considering the parties’ submissions and evidence, I do not accept the respondent’s limitation defense, nor do I grant the respondent’s request for costs.

INCLUSION OF THE APPLICANT’S SUBMISSIONS

7At the start of the teleconference portion of the hearing, the respondent argued that the applicant’s written submissions should be disregarded due to the late exchange of these submissions. According to the order from Vice Chair White (dated February 8, 2019), the parties’ written submissions for this preliminary issue hearing were due to be exchanged and submitted to the Tribunal by March 8, 2019. Therefore, since the applicant did not exchange her submissions until March 11, 2019, the respondent argued that allowing her these extra days to complete her submissions would be unfair to the respondent.

8In response, the applicant’s representative stated that his office was changing its computer systems in and around that time. As such, the applicant’s submissions were not provided on time due to a technical issue.

9I have decided to allow the inclusion of the applicant’s submissions. In addition to accepting the applicant’s explanation for the late exchange (an error that meant she was not given extra time), I would note that the parties’ submissions were both due on the same day. As such, the prejudice caused by this delay is quite minor, since the respondent was not made to wait for the applicant’s arguments before starting to draft its own responding submissions.

LIMITATION PERIOD FROM SECTION 56 OF THE SCHEDULE

10Section 56 of the Schedule states that: “An application under subsection 280 (2) of the [Insurance Act²] in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.”

11The respondent argued that its letters dated October 9, 2014 and November 27, 2014 (the “October letter” and the “November letter”, respectively) were clear and unequivocal denials of the disputed medical benefits. Specifically, the October letter denied the orthopaedic assessment, while the November letter denied the psychological assessment. Therefore, since the applicant did not file an application with the Tribunal until October 1, 2018, she did not file within the required two year period for either of these denials.

12The applicant challenged the argument that these letters were clear and unequivocal denials. Specifically, since the November letter informed her that the respondent was setting up its own assessments about the MIG, she received the message that the respondent’s position on the MIG was still in question. In other words, the need for further medical evidence suggested to the applicant that the denials based on the MIG were not clear and final determinations of the respondent’s position. Therefore, the applicant did not receive clear and unequivocal denials of the assessments until she received the results of the respondent’s assessments on December 8, 2016.

13After considering the two letters in question, I conclude that the October letter is a clear and unequivocal denial of the orthopaedic assessment. However, I cannot say the same about the November letter—a letter that placed reasonable doubt in the applicant’s mind as to whether either assessment had, in fact, been denied.

14First, in the October letter, the respondent clearly stated that the benefit had been denied on the basis of the MIG’s treatment and funding limits [emphasis added]:

We have received the medical documentation that has been provided. We have determined that there is insufficient compelling evidence or pre-existing injuries or conditions and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the MIG.

We believe the MIG applies and the treatment claimed is not reasonable or necessary as it does not conform to the MIG treatment protocols.

15This language can then be contrasted with the more equivocal wording in the November letter [emphasis added]:

We have reviewed and compared all medical documentation that has been provided, and compared it further to the Minor Injury Guideline (MIG), and determined that there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the Minor Injury Definition.

We believe the Minor Injury Guideline applies and the treatment claimed is not reasonable or necessary, as it does not conform to the Minor Injury Guideline treatment protocols. Coverage for a minor injury is capped at $3,500 for all treatment and assessments.

We are currently in the process of referring this treatment plan request to an Insurer’s Examination in accordance with Section 44 of the [Schedule]. An independent medical opinion will assist in determining if your accident related impairment would fall within the definition of “minor injury” in accordance with the [Schedule] or if the impairment is predominantly a psychological impairment.

Pending receipt of the independent medical opinion please note that coverage for treatment of your accident related impairment will be limited to the cap of $3,500, including assessments, in accordance with the “Minor Injury” limits under the [Schedule].

16Both of these letters are attached to the same, boilerplate letter detailing the steps for challenging a denial or reduction of benefits (the “dispute process letter”).

17While the November letter begins with similar language, the respondent then goes on to state that, “[p]ending receipt of the independent medical opinion”, the MIG limits would be in place. Therefore, as opposed to the clear language of the October letter, the November letter is more contingent, as a medical opinion is necessary to determine whether its earlier MIG position will hold.

18For assistance in interpreting the language of these letters, I turn to the seminal case from the Supreme Court of Canada: Smith v. Co-operaters General Insurance Company.³ Writing for the majority, Justice Gonthier noted at paragraph 20 that, were it not for a later letter clearly stating that the benefit in question had been denied, an earlier, equivocal letter would not have been a clear denial [emphasis added]:

There is some doubt in my mind as to whether the notice given by the respondent in this case would even be considered a refusal in a non-technical sense, absent the refusal letter sent to the appellant’s solicitor. The notice says, inter alia, “If you disagree with our assessment, please contact us immediately. If we cannot settle the application to your satisfaction, you have the right to ask for mediation . . .”. There is an equivocal sense of indeterminacy in the decision of the insurer giving the reader the impression that the insurer may very well change its stance if it is contacted for a discussion of the matter. The letter to the solicitor in this case removes any doubt by clearly stating, “Ms. Smith is no longer entitled to Income Replacement Benefits”.

19In a similar fashion, the November letter created reasonable doubt in the applicant’s mind as to when the denials in dispute were, in fact, clear and unequivocal. It was, therefore, reasonable for her to conclude that the respondent’s denials were now contingent on the results of these planned examinations. Further, even in light of the clear language in the October letter, the basis for both denials was the application of the MIG limits, so casting doubt on that conclusion in the November letter was enough to turn a clear and unequivocal denial into a contingent one.

20The respondent pointed me to the Tribunal’s decision in 16-002606 v. North Blenheim Mutual Insurance Company⁴, wherein the applicant was barred from proceeding with her claim due to the late submission of her application. I do not find this decision to be of significant assistance. Adjudicator Go’s reasons were mainly based on her interpretation of the transitional provisions that applied to applications filed during the changeover from the Financial Services Commission of Ontario to the Tribunal. Though the applicant’s application was filed in and around this changeover period, these provisions are not of relevance to my determination.

21Finally, I would note that the dispute process letter does not provide specific information about whether the particular benefits at issue are being denied. That is, not only was this letter attached to both the October and November letters (i.e., letters with both unequivocal and equivocal denials), but the language used to describe the limitation period is general and unrelated to the specific benefits at issue [capitalization in original]: “You have TWO YEARS from the date of your insurer’s refusal to pay, or reduction of a benefit, to arbitrate or commence a lawsuit in court.”

22Taken together, I find that the limitation period did not start running until the applicant received the respondent’s assessment reports on December 8, 2016. The applicant’s application may proceed.

COSTS

23Rule 19.1 of the Common Rules of Practice & Procedure⁵ states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

24Since it should have been clear that her application was filed outside of the limitation period, the respondent argued that the applicant’s decision to pursue this matter is unreasonable behaviour. The respondent also raised the late exchange of her submissions as further evidence of her unreasonable behaviour. In response, the applicant contended that it was reasonable for her to continue challenging the respondent’s denial of the treatment plans.

25In the present matter, the respondent did not provide a credible account of unreasonable behaviour. That is, in addition to my earlier findings about the late submission of her written submissions, I further find that the applicant’s decision to pursue her application is not unreasonable, especially since I have declined to accept the respondent’s position on the limitation period.

CONCLUSION

26I find that the applicant can continue to contest both of the disputed treatment plans. Further, the respondent is not entitled to a costs award.

Footnotes

1. 1O. Reg. 34/10.
2. 2R.S.O. 1990, c. I.8.
3. 32002 SCC 30, [2002] 2 S.C.R. 129; 2002 SCC 30.
4. 42017 CanLII 33690 (ON LAT).
5. 5Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission (October 2, 2017).