Citation: M.L. vs. Unifund Assurance Company, 2020 ONLAT 19-009999/AABS

Released Date: 08/17/2020

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:

M.L.

Applicant

and

Unifund Assurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Nadim Barsoum

For the Respondent:

Lora Castellucci

Heard by way of written submissions

OVERVIEW

1M.L. was injured in an accident on March 27, 2015 and sought various benefits, including an income replacement benefit (“IRB”), from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').

2Following the accident, M.L. continued to work. Her initial application (“OCF-1”) dated April 20, 2015 and Disability Certificate (“OCF-3”) dated May 12, 2015 both confirmed that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment, which is the test for entitlement to an IRB under s. 5(1) of the Schedule. Accordingly, in an explanation of benefits dated August 11, 2015, Unifund advised M.L. that she was not entitled to an IRB as she had returned to work and had not submitted a complete application for the benefit. M.L. did not dispute the denial.

3M.L. continued to work on a full-time basis until January 19, 2018. In the two and a half years post-accident, M.L. had only consumed minimal medical and rehabilitation benefits in the amount of $405. Her long-term disability claim was denied. Yet, her condition was deteriorating.

4On December 3, 2018—three years and eight months post accident—M.L. submitted an Election of Benefits form (“OCF-10”) to Unifund, electing to receive an IRB as a result of the 2015 accident. An updated OCF-3 followed on January 14, 2019 and an Employer’s Confirmation form (“OCF-2”) was submitted with the new OCF-3 on April 11, 2019.

5On April 11, 2019, Unifund sent M.L. an explanation of benefits denying her IRB claim on the basis that she had first noticed her inability to work more than three years post-accident and did not meet the eligibility criteria for an IRB, which requires the disability to arise within 104 weeks of the accident.

6On May 10, 2019, Unifund accepted that M.L. was catastrophically impaired as a result of impairments sustained in the 2015 accident. On September 13, 2019, M.L. commenced her application at the Tribunal, seeking payment of an IRB in the amount of $400 per week for the period January 19, 2018 to date and ongoing. Unifund disagreed and raised two preliminary issues giving rise to this preliminary issue written hearing.

ISSUES IN DISPUTE

7The following preliminary issues are in dispute:

i. Is the applicant barred from proceeding with her claim for an IRB pursuant to s. 56 of the Schedule because she failed to commence her application within two year’s after the respondent’s refusal to pay the amount claimed?

ii. Is the applicant barred from proceeding with her claim for an IRB pursuant to s. 5(1) of the Schedule because she did not establish her eligibility for the benefit within 104 weeks of the accident?

result

8I find M.L. is statute-barred from proceeding with her claim for an IRB under s. 56 because she did not appeal a valid denial within two years and because she did not establish her eligibility under s. 5(1) within 104 weeks of the accident.

ANALYSIS

9Unifund submits that s. 5(1) is clear that an IRB is only payable if M.L. sustained an impairment and suffered a substantial inability to perform the essential tasks of her pre-accident employment within 104 weeks of the accident. It submits that since M.L. did not establish entitlement to an IRB within 104 weeks post-accident—she continued to work full-time for three years, she failed to submit an OCF-3 supporting an IRB within 104 weeks, there is no medical evidence supporting a disability during this period, she did not elect an IRB until December 2018—she is precluded from seeking an IRB post-104-weeks despite her deteriorating condition. In turn, and in any event, Unifund submits that M.L. is statute-barred under s. 56 because she failed to appeal its proper denial of August 11, 2015 within the two-year limitation period, as her application for an IRB was submitted over four years following the accident.

10In response, M.L. relies on the Court of Appeal decision in Tomec v. Economical Mutual Insurance Company¹, as well as my reconsideration decision in 19-000069/AABS², to argue that the common law doctrine of discoverability applies to her IRB claim. M.L. submits that she should not be precluded from proceeding with her claim for an IRB because she did not discover her eligibility for same until after the two-year limitation period elapsed. She further submits that Unifund cannot rely on the disability test under s. 5(1) because she was not disabled within 104 weeks, and it would unfairly punish her and undermine the consumer protection nature of the Schedule and the policy rationale of limitation periods.

11In reply, Unifund submits that Tomec and 19-00069/AABS are distinguishable because they dealt solely with the two-year limitation issue and not with eligibility under s. 5 of the Schedule, which is in dispute here. Unifund further submits that neither decision dealt with the Court of Appeal ruling in Bonilla v. Preszler³, that specifically determined that the common law rule of discoverability does not apply to a denial of an IRB. As Unifund points out, Bonilla was not considered when I applied Tomec in 19-000069/AABS but was considered in my more recent decision in 19-006331/AABS⁴, where I found at para. 27 that “there was no indication that the Tomec court overturned its decision in Bonilla, where it declined to import the discoverability rule to income replacement benefits.” Notably, despite wrestling with the applicability of the rule of discoverability in both 19-000069/AABS decisions, I found that the applicant would have trouble overcoming the entitlement hurdles presented by s. 5(1) at a substantive hearing. On the evidence available, I find that is also the case here for M.L. despite her catastrophic designation.

12While I believe that this remains an unsettled area of law and I continue to vacillate on the applicability of the discoverability doctrine to IRB claims, I ultimately agree with Unifund’s position on both of the preliminary issues. That is, on the current and binding direction from the Court of Appeal, the two-year limitation period under s. 56 is triggered by a single event, being a refusal to pay an IRB⁵, and that the accrual or discovery of a disability over time is not a relevant factor for consideration⁶ where substantive entitlement to an IRB has not been established within 104 weeks post-accident under s. 5(1).⁷

13Problematically, M.L.’s submissions rely entirely on two cases and the application of the discoverability rule to her IRB claim. M.L. did not make any arguments that Unifund’s IRB denial was not clear or that it was improper under the Schedule. She does not dispute that her application was commenced long after the expiration of the two-year mark from Unifund’s denial. She does not offer submissions on s. 7 of the Licence Appeal Tribunal Act.

14Further, M.L. has not provided case law or submitted medical evidence to support her entitlement to a post-104 week IRB where she did not establish entitlement to an IRB within 104 weeks of the accident as required by s. 5(1)1.i of the Schedule. Indeed, as Unifund points out, M.L. admits in her submissions that she was not disabled within 104 weeks of the accident and the evidence available confirms this. For example, the OCF-1 dated April 20, 2015 states that she continued to work post-accident. The OCF-3 of May 12, 2015 states that M.L. does not meet the IRB test as she does not suffer a substantial inability to perform her essential tasks of employment. M.L. continued to work on a full-time basis, with no modifications, until January 19, 2018. Her date of disability is listed as January 20, 2018 and she did not qualify for long-term disability benefits at that time. None of the medical evidence from two years post-accident submitted by Unifund indicates that M.L. meets the IRB test or that she is prevented from working. M.L.’s OCF-10 was submitted three years and eight months post-accident and the updated OCF-3 was not submitted until January 14, 2019, both well-past the two-year mark. There is no analysis of the essential tasks of her employment or how she was substantially unable to do them during the 104-week period post-accident. With respect, I agree with Unifund that allowing M.L. to proceed with her claim in the absence of any evidence of disability during the 104-week post-accident period would be based entirely on speculation.

15For these reasons, I find Unifund successful on both preliminary issues. M.L. did not submit an OCF-3 or medical evidence confirming that she met the statutory criteria for IRB entitlement within 104 weeks of the accident as required by s. 5(1). Unifund issued a valid denial on that basis. Additionally, I find M.L. failed to commence her application for an IRB within two year’s after Unifund’s refusal to pay the benefit, meaning she is statute-barred under s. 56. As noted, the two-year limitation period under s. 56 is triggered by a single event, being a refusal to pay an IRB. M.L.’s discovery of her disability over time is not a relevant factor for consideration where she failed to demonstrate substantive entitlement to an IRB within 104 weeks post-accident. Accordingly, I find M.L. is statute-barred from proceeding with her claim.

CONCLUSION

16M.L. is statute-barred from proceeding with her claim for an IRB as she failed to dispute a valid denial within the two-year limitation period and has not demonstrated that she is entitled to an IRB because she did not meet the disability test under s. 5(1) within 104 weeks of the accident.

Footnotes

1. 12019 ONCA 882.
2. 22020 CanLII 12744 (ON LAT Reconsideration).
3. 32016 ONCA 759 [“Bonilla”].
4. 42020 CanLII 34497 (ON LAT).
5. 5Bonaccorso v. Optimum Ins. Co., 2016 ONCA 34.
6. 6Bonilla, at para. 12.
7. 7See, Wadhwani v. State Farm Auto. Ins. Co., 2013 ONCA 663, at paras. 12-16.