Released Date: 04/23/2020 File Number: 19-004414/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:
D. S.
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Michel Diguer, Representative
For the Respondent:
Monika Bolejszo, Counsel
HEARD by way of written submissions
OVERVIEW
1The applicant, D.S., is a resident of Ontario. She was seriously injured in an automobile accident in Quebec on July 28, 2015. She elected to receive benefits under the Quebec no-fault accident benefits scheme, as she was entitled to do pursuant to the applicable Ontario no-fault accident regulations.
2Under the Quebec Benefits Scheme, a lump-sum amount is paid based on the severity of the injury. In 2017, the maximum amount payable was $242,311.00. The amount payable was determined by what percentage of impairment the insured was assessed to have suffered, i.e. if the impairment was assessed at 10%, the calculation would be $242,311.00 x 10% = $24,341.10 payable. D.S. was paid a percentage by the respondent, Economical, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3Economical raised the limitation period defence under s. 56 of the Statutory Accident Benefits Schedule – Accidents September 1, 2010 (the “Schedule”) as a preliminary issue in response to D.S.’s claim for entitlement to further payment. The parties were unable to resolve the preliminary issue at the case conference and agreed to proceed to a written hearing on the preliminary issue.
4Economical’s position is that D.S. is statute barred from proceeding with her claim as she failed to submit an application to the Tribunal within 2 years of Economical’s refusal to pay any additional amounts. D.S.’s position is that due to failing health, she missed the application filing date by seventeen days.
PRELIMINARY ISSUE
5The order of Adjudicator Dreisel, dated October 25, 2019, noted the preliminary issue in dispute as follows:
(i) Is D.S. statute-barred from proceeding with her application at the Tribunal for failing to dispute Economical’s denial within 2 years in accordance with section 56 of the Schedule?
RESULT
6I find that D.S. is statute-barred from proceeding with her claim for benefits as she failed to commence her application within two years after a valid denial by Economical.
ANALYSIS
Is D.S. statute-barred from proceeding with her Tribunal application?
7D.S. submits that in the two weeks leading up to the limitation period deadline (April 13, 2019), her condition “plummeted dramatically.” As a result of what D.S. describes as a significant decline in her psychological well-being, the Tribunal application was filed 17 days late.
8For the reasons that follow, I find that D.S. has not met the onus on her to provide a reasonable explanation for the delay in filing her Tribunal application.
9Economical submits that D.S. has offered no reasonable explanation for the delay in filing her Tribunal application. In support of its position, Economical relies on the following evidence:
(i) D.S. offered no evidence for her claims that she was suffering from a mental breakdown including suicidal thoughts in the weeks leading up to the two-year limitation deadline; and
(ii) D.S.’s son, M.D., who was assisting his mother with her claim, indicated to the adjuster on the matter that he understood there was a two-year deadline to submit an application to the Tribunal as set forth in Economical’s denial letter of April 13, 2017.1
10My finding is further supported by D.S.’s evidence, which establishes that she has not provided a reasonable explanation for the delay in filing her Tribunal application. For instance:
(i) D.S. filed a letter from her family physician, Dr. Kathleen Gabriel,2 indicating that D.S. had “ongoing stress in her personal life” around the time of limitation deadline. Dr. Gabriel’s letter does not describe D.S.’s health issues in the same manner as described in D.S.’s submissions as being “severely depressed, very fragile, and extremely stressed and inconsolable...including suicidal thoughts”
(ii) There is no evidence that Dr. Gabriel ever saw D.S. on or about April 13, 2019 for the above-mentioned health issues. This is evidenced by Dr. Gabriel’s registration as a family physician effective June 17, 2019.3 Dr. Gabriel was only able to practice as a family physician after the limitation deadline of April 13, 2019 and after D.S.’s alleged symptoms that prevented her from filing her LAT application before the deadline.
11I place little weight on the letter from Dr. Gabriel, as there is no objective evidence in the letter to support the claims made by D.S. Further, there is no evidence that Dr. Gabriel had seen D.S. in any other capacity, i.e. as a resident under supervision of a doctor.
12There has been no persuasive evidence filed to substantiate that D.S. was suffering from any ailments two weeks prior to the limitation deadline of April 13, 2019 that would have prevented her from filing her LAT application in a timely manner.
13For these reasons, I agree with Economical, and find that D.S. is statute-barred from proceeding with her application.
CONCLUSION
14I find Economical provided D.S. with a valid denial of her benefits in April 13, 2017. The denial was clear and unequivocal and provided D.S. with the requisite information to determine whether to dispute the denial while also triggering the limitation period. D.S. did not appeal the denial within the two-year limitation period.
15Accordingly, pursuant to s. 56, D.S. is statute-barred from proceeding with her application for benefits at the Tribunal.
Released: April 24, 2020
Derek Grant
Adjudicator
Footnotes
- Respondent’s Book of Documents: Email from Michel Diguer to Economical, dated January 31, 2018
- Respondent’s Book of Documents at Tab 15: Note from Dr. Gabriel re: D.S.’s ongoing stress
- Respondent’s Book of Documents at Tab 1: Member Search of Dr. Gabriel, College of Physicians and Surgeons of Ontario