Released Date: 08/11/2020
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:
V.O.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Sandra Driesel
APPEARANCES:
For the Applicant: David Carranza, Paralegal
For the Respondent: Michal Baura, Counsel
Heard by way of written submissions
REASONS FOR DECISION
Overview
1The applicant (“VO”) was involved in an automobile accident on January 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) on February 27, 2019.
2Following a case conference of August 13, 2019, the outstanding issues in dispute for medical benefit and interest were scheduled to a hearing in writing. Although it was noted in the insurer’s response to the LAT application (“Response by Insurance Company” dated March 28, 2019), the Tribunal Order (Amended) of December 18, 2019 fails to mention the preliminary issue.
3The respondent (“Aviva”) raised a preliminary issue that could prevent the Tribunal from hearing VO’s appeal related to the denial of payment for the psychological assessment. Aviva argues that VO is statute-barred from appealing its refusal to pay for this assessment because VO failed to commence the appeal within two years of the denial date, as required in s.56 of the Schedule.
4The written submissions from both parties reference the denial of the treatment plan in dispute and the issue raised by the respondent regarding the appeal being statute-barred. Given this, I will first consider this preliminary issue.
ISSUE(S)
5Is VO statute-barred from proceeding with her appeal for this medical benefit because she failed to commence her application within two years after Aviva’s refusal to pay the amount claimed?
6If I find that VO’s appeal may proceed (as it is not statue-barred) I must then decide:
i. Is the applicant entitled to $1,995.32 for the cost of an examination: a psychological assessment, recommended by Dr. Bodnar dated October 4, 2016, submitted on December 9, 2016?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that VO is statute-barred from pursuing her claim for the cost of examination in dispute. Because she applied to the Tribunal outside of the two-year limitation period set out in the Schedule. It is therefore unnecessary to consider the applicant’s entitlement to this benefit.
REASONS
8Under s. 56 of the Schedule, an appeal of an insurer’s denial of benefit must be commenced within two years after the insurer’s refusal to pay the amount claimed. The two-year anniversary is called the “limitation period.”
9If an appeal is not filed within the two-year limitation period prescribed by s.56, then the Tribunal cannot hear it: the appeal is effectively dismissed without a hearing. The appeal is determined to be “statute-barred.”
Chronology of Events as per submissions:
10The OCF-18 [Treatment and Assessment Plan] for the medical benefit in dispute was dated October 4, 2016. It was for a psychological assessment, recommended by Dr. Bodnar. It was submitted to Aviva October 31, 2016. It was entered into the insurers data base “HCAI” as document #1610310071.
11Aviva denied the OCF-18 in its entirety on November 4, 2016. Aviva claims to have sent an EOB letter on November 4, 20162, by mail to VO and her representative. A copy of the Adjuster’s log notes show that the EOB was sent out November 4, 20163.
12VO submits that neither she nor her legal representative received the November 4, 2016 EOB either by fax, email or mail and therefore considered the OCF-18 to be approved. VO attended the assessment November 25, 2016 and submitted the report on same, dated December 2, 2016 to Aviva December 9, 2016.
13On April 19, 2017 VO sends an invoice for payment of the assessment [$1,995.32] that was completed by Dr. Bodnar and submitted to Aviva December 9, 20164.
14On February 27, 2019 VO filed an application with the Tribunal seeking entitlement for the cost of the examination. The application reports the denial of payment for the report that was submitted to the insurer December 9, 2016 and excludes a ‘denial date’ but states [the insurer] “Failed to pay”.
15On March 28, 2019 Aviva filed a ‘Response by Insurance Company5’ with the Tribunal that raises the issue of the OCF-18 for this assessment in dispute being denied November 4, 2016 and that the applicant is statute-barred from proceeding with the matter.
The applicant’s position:
16VO takes the position that respondent failed to properly deny the treatment plan; that no correspondence informing the applicant of their decision, and providing sufficient medical reasons, and all the other reasons was provided by the Respondent6. VO believes that a normal method of delivery would usually include a faxed copy to her representative and as this wasn’t done in this case, Aviva cannot prove the EOB was mailed. In addition, because Aviva failed to address the report provided them on December 9, 2016 or the invoice sent later, VO should be entitled to payment.
The respondent’s position:
17Aviva takes the position that an EOB sent to VO and her representative meet the obligations defined in the Schedule and that the copy of the denied OCF-18, a copy of the EOB and the adjuster’s log notes are proof. Furthermore, The EOB of November 4, 2016 triggered the 2-year limitation period on November 9, 2016 (the date the applicant is deemed to have received the letter as per section 64(18) of the Schedule). The LAT application was filed on February 27, 2019: 2 years, 3 months and 19 days from the November 9, 2016 denial date and therefore is statute-barred from proceeding.
Is VO’s appeal statute-barred?
18After reviewing the parties’ submissions, I find that VO’s appeal was filed beyond the limitation period.
19Although Aviva provides no explanation as to why a copy of the EOB was mailed, rather than faxed to VO’s representative, this method of delivery is permitted by s. 64(2) of the Schedule. Section 64(18) states that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document was mailed. NOTE: I did fact check on the calendar dates for ‘2016’. With the EOB being mailed November 4, 2016 (Friday) the fifth business day would be November 11, 2016 (Remembrance Day) when there is no Canadian mail delivery. Therefore, the mailed copy of the letter would be deemed received by VO on November 14, 2016 that this is the date that triggers the limitation period. Still, the filing of the LAT application on February 27, 2019 exceeds the limitation period of two years.
20As much as Aviva has not provided proof of mailing, I have not found evidence such as a sworn affidavit before me from either VO or the legal representative confirming that the November 4, 2016 EOB was never received by them.
21VO infers that Aviva did not acknowledge receipt of the assessment report and the invoice because the related OCF-18 was never properly denied. VO’s reply submissions dated January 29, 2020 agrees that the treatment plan was submitted on October 31, 2016 and denied on November 4, 20167. I cannot find from VO’s submission8 that she made any attempt to contact Aviva on the status of the invoice (or OCF-18) until the filing of the LAT application. Nor can I find in the VO’s submissions any explanation as to why there was a delay in filing an application for this treatment plan (OCF-18) for the psychological assessment.
CONCLUSION
22Based on the above I find that:
i. VO’s claim for the cost of the examination, being filed on this application to the Tribunal, was filed on February 27, 2019, which was after the expiry of the two-year limitation period set out in the Schedule; and VO is statute-barred from pursing her claim.
23Given that no other issues remain in dispute on this application, the application is dismissed.
Released: August 11, 2020
Sandra Driesel
Adjudicator
Footnotes
- Respondents submission, Tab 2
- Respondents submission, Tab 5
- Respondents submission, Tab 4
- Applicant’s submission Tab 13
- Respondent’s submission Tab 12
- Applicant’s submission, page 7, paragraph 45
- Applicant’s reply submissions page 2, paragraph 4
- Applicant’s submission, Index Pages 1 & 2: evidence related to this OCF-18 shows a gap of none activity from TAB 13 (April 19, 2017) to the date of the application and subsequently Respondent’s email regarding this OCF-18 (August 14, 2019)