Sheila Davis-Taylor v. Wawanesa Mutual Insurance Company, 2020 CanLII 57425

Citation: S.D-T. v. Wawanesa Mutual Insurance Company, 2020 ONLAT 19-009280/AABS

Released Date: 08/05/2020

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:

Sheila Davis-Taylor Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Volha Vinahradava, Paralegal

For the Respondent: James Schmidt, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on October 27, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2Wawanesa Mutual Insurance Company (“respondent”) denied payment of income replacement benefits (“IRB”), an OCF-18, treatment plan in the amount of $3,416.68 (“two disputed benefits”), and other benefits claimed by the applicant. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”). The respondent raised the following preliminary issue.

PRELIMINARY ISSUE

3The preliminary issue to be decided is:

i. Is the applicant statute barred from proceeding with her claim on the following issues for failing to dispute the same within the two year limitation period pursuant to s. 56 of the Schedule?:

a. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 11, 2017 to date and ongoing?

b. Is the applicant entitled to a medical benefit in the amount of $3,416.68 for psychological treatment recommended by Inline Rehabilitation Centre in a treatment plan (OCF-18) submitted May 24, 2017 and denied on December 5, 2017?

RESULT

4The applicant’s application with respect to the two disputed benefits, specifically the income replacement benefit and the treatment plan for $3,416.68, is statute-barred and dismissed. The remaining substantive issues will proceed to a hearing as set out in the Tribunal’s February 13, 2020 case conference Order.

LAW

5Section 56 of the Schedule provides that an application before the Tribunal in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The onus is on the respondent to show that the limitation period has expired.

6Section 7 of the Licence Appeal Tribunal Act, 1999² (“Lat Act”) allows the Tribunal to extend a limitation period under certain circumstances. In considering whether to exercise its discretion to extend the limitation period the Tribunal must consider the following four factors³:

a. A bona fide intention to appeal within the limitation period;

b. The length of delay;

c. Prejudice to the other party; and

d. Merits of the appeal.

7The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of Lat Act.

Respondent’s position

8The respondent submits that the application contravenes s. 56 of the Schedule because it was commenced more than two years after the respondent’s refusal to pay the two disputed benefits claimed. The respondent submits that its first refusals on the two disputed benefits were unequivocal and resetting a limitation period on the basis that an insurer fulfilled its obligation to re-assess the applicant is contrary to public policy as it would benefit insurers who do not properly adjust and assess claimants, while simultaneously rewarding those who do not properly assess same.

Applicant’s position

9The applicant submits that her August 9, 2019 Tribunal application is within the two year limitation period because the latest IRB denial date was December 5, 2017. With respect to the $3,416.68 treatment plan, the applicant received Dr. Wolf’s material review addendum report on December 5, 2017. Therefore, the limitation period for both disputed benefits should start December 5, 2017. The applicant also submits that the Tribunal should relieve against compliance with the limitation period based on the circumstances and evidence provided and/or by s. 7 of the Lat Act.

ANALYSIS

Is the Applicant’s Application for the Two Disputed Benefits Statute-Barred?

10For the following reasons, I find that the respondent has met its burden of proof to establish that the limitation period expired for the two disputed benefits claimed in the applicant’s application before the Tribunal application was filed.

IRB

11I find that the respondent’s June 1, 2017 correspondence, faxed June 2, 2017 (“June 2, 2017 letter”), is the respondent’s written refusal of IRB. This refusal was clear and unequivocal. Reasons were given for the refusal and a description of the dispute resolution process was provided. In the June 1, 2017 letter the respondent told the applicant that based on its s. 44 independent assessors, Ms. Westbrook, Dr. Wolf and Dr. Tansey (“IE assessors”), the respondent determined the applicant was no longer entitled to IRB and “…no further Income Replacement Benefit is payable effective June 19, 2017”. The medical and other reasons for the denial of IRB were set out clearly and the letter concluded by advising the applicant that per s. 56 of the Schedule and s. 280 of the Insurance Act⁴, she had two years “from our notice” to file an application with the Tribunal. It also included a warning that “if you do not apply within two years, you will lose the right to dispute the determination”. An Explanation of Benefits (“EOB”) was attached and the applicant’s legal representative was copied. I find that the IRB time limitation had expired June 2, 2019. When the applicant filed her Tribunal applicant for IRB on August 9, 2019, it was statute barred for IRB.

12The applicant argues that she was further assessed by the respondent’s IE assessors after June 2, 2017 so the respondent was not in a position to make a valid conclusion with respect to IRB continuation until December 5, 2017. I am not persuaded by this argument. Continuing assessment of the applicant does not change the respondent’s date of refusal of IRB which was made clear in its June 1, 2017 correspondence to the applicant. It is up to the respondent to determine if and when it will refuse a benefit. The applicant’s recourse is to file a Tribunal application if it disagrees as the applicant was informed on June 2, 2017.

13The applicant argues that the respondent sent a later IRB denial on December 5, 2017 and that as per s. 56 of the Schedule and s. 280 of the Insurance Act, the applicant has two years from the latest notice to dispute the denial. I am not persuaded by this argument. The December 5, 2017 correspondence from the respondent to the applicant is a repeat of the IRB refusal position of June 2, 2017 and does not re-set the limitation period. On December 5, 2017 the respondent advised the applicant it had received an addendum report from Dr. Wolf and sent her a copy. The letter states “…Dr. Wolf’s expressed opinions, as stated in his Insurer Examination Report dated May 16, 2017, and Material Review Reports dated March 13, 2017, May 16, 2017, June 7, 2017 and June 28, 2017 remain unaltered”. Again, an EOB was attached and the applicant’s legal representative was copied.

14I have found as a fact that the respondent refused IRB on June 2, 2017. Section 56 of the Schedule is precise and unambiguous and provides that an application under s. 280(2) of the Act shall be commenced within two years after the insurer’s refusal to pay the amount claimed. This language is mandatory. As the Divisional Court stated in Kirkham v. State Farm⁵, “if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense”. Repeating a refusal does not change the original date of refusal, June 2, 2017 in this case.

15Further, it appears that there is no authority for the legal proposition that repeating the refusal resets the limitation period in s. 56. The applicant did not point me to anything in the Schedule indicating otherwise. The applicant relies on a motion Order in another Tribunal case which arose from a motion to dismiss an application under s. 55 of the Schedule for applicant’s failure to attend IEs. The considerations under s. 55 are different and therefore that Order is not helpful here.

Disputed Treatment Plan for $3,416.68

16I find that the respondent’s June 13, 2017 correspondence is the respondent’s written refusal of this disputed treatment plan. This refusal was clear and unequivocal. Reasons were given for the refusal and a description of the dispute resolution process was provided. In the June 13, 2017 letter, the respondent told the applicant that “…we do not agree to pay for the above noted goods and services proposed in the OCF-18s…” The medical and other reasons for the denial of this treatment plan were set out clearly. In addition, the letter concluded by advising the applicant that per s. 56 of the Schedule and s. 280 of the Insurance Act, she had two years “from our notice” to file an application with the Tribunal and a warning that “if you do not apply within two years, you will lose the right to dispute the determination”. An EOB was attached and the applicant’s legal representative was copied. I find that the time limitation for this disputed treatment plan had expired June 13, 2019. When the applicant filed her Tribunal application for the treatment plan on August 9, 2019, it was statute barred for this disputed treatment plan.

17The applicant argues that she did not receive Dr. Wolf’s material review addendum report until December 5, 2017, and therefore the limitation period should be computed from December 5, 2017 on the disputed treatment plan. I am not persuaded by this argument.

18I have found as a fact that the respondent refused this disputed treatment plan on June 13, 2017. As noted above, s. 56 of the Schedule is precise and unambiguous and provides that an application under s. 280(2) of the Act shall be commenced within two years after the insurer’s refusal to pay the amount claimed. This language is mandatory. As explained above, the Divisional Court stated in Kirkham v. State Farm, “if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense”. Continuing to assess the applicant and to share updated medical information does not change the refusal.

19Further, it appears that there is no authority for the legal proposition that sending further medical information after a written refusal or continuing to assess the applicant extends the limitation period in s. 56 or links the limitation period to the applicant’s receipt of respondent’s medical reports. The applicant did not point me to anything in the Schedule indicating otherwise. Again, the applicant relies on a motion Order in another Tribunal case which arose from a motion to dismiss an application under s. 55 of the Schedule for applicant’s failure to attend IEs. The considerations under s. 55 are different and therefore that Order is not helpful here.

Discretion Under Lat Act

20I find that the applicant has not met her onus to establish reasonable grounds for an extension under s. 7 of the Lat Act. I decline to exercise my discretion to extend the deadline to appeal the two disputed benefits for the following reasons.

21The evidence fails to show applicant’s bona fide or good faith intention to appeal within the appeal period.

22The applicant did not seek to claim the two disputed benefits until it filed its application with the Tribunal on August 9, 2019, more than one month after the IRB limitation period had ended and some three weeks after the disputed treatment plan limitation period had ended. This delay is excessive considering that the 104 week post-accident time period is critical for IRB and considering that the disputed treatment plan relates to psychological treatment proposed more than two years earlier.

23Given this length of time, there would be prejudice to the respondent, not now curable, as the respondent has been denied the opportunity to obtain further evidence as to the applicant’s eligibility for IRB and proposed psychological treatment some years earlier.

24The applicant has failed to establish that her application for these two disputed benefits has merit. The applicant filed no medical evidence. Consequently, based on the lack of evidence before me, the applicant is unlikely to meet the test for IRB or the disputed treatment plan.

ORDER

25The applicant’s application with respect to IRB and the treatment plan for $3,416.68 is statute-barred and is dismissed. The remaining substantive issues will proceed to a hearing. The parties are to contact the Tribunal within two weeks of receiving this Decision to discuss the next steps concerning the hearing on the remaining substantive issues as per the Tribunal’s case conference Order made February 13, 2020.

Footnotes

1. 1O.Reg. 34/10
2. 2S.O. 1999, c. 12, Sched. G.
3. 3Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.).
4. 4R.S.O. 1990, c. I.8.
5. 5Kirkham v. State Farm, [1998] O.J. No. 6459, 1998 CarswellOnt 2811 para 2.