Ian R. Perrigard v. Primmum Insurance Company, 2021 CanLII 120890

Citation: Perrigard v. Primmum Ins. Co., 2021 ONLAT 19-010651/AABS - PI

Licence Appeal Tribunal File Number: 19-010651/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:

Ian R. Perrigard

Applicant

and

Primmum Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Maciek Piekosz, Counsel

For the Respondent: Allison Webster, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on December 28, 2015. He sought a medical benefit as well as an income replacement benefit (“IRB”) from the respondent, Primmum, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). Primmum paid the IRB but terminated it on January 9, 2017. It denied the medical benefit on March 22, 2017. The applicant disagreed with the denial and applied to the Tribunal for resolution of the dispute. Primmum then raised the preliminary issues leading to this hearing.

PRELIMINARY ISSUES

2The issues in dispute are as follows:

a. Is the applicant precluded from proceeding with his application because it was commenced more than two years after Primmum denied each benefit claimed in the application?

b. Is the applicant precluded from proceeding with the claim for IRB after March 3, 2017 because he failed to comply with Primmum’s request (i) that he submit an OCF-3; (ii) that he attend for s. 44 Insurer’s Examinations (“IEs”)?

RESULT

3The applicant is statute-barred from proceeding with his application under s. 56 as it was commenced more than two years after valid denials by Primmum. There is no basis to extend the limitation period to allow him to proceed. The applicant is also statute-barred from proceeding with his IRB claim under s. 55(1)2 due to his failure to attend at properly scheduled s. 44 IE’s.

ANALYSIS

Section 56

4Pursuant to s. 56 of the Schedule, an application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years of the insurers refusal to pay the amount claimed. The two-year limit is triggered when the insurer provides clear and unequivocal notice of a denial and outlines the insureds right to engage the dispute resolution process.¹

5Primmum submits that the Applicant brought this application on September 24, 2019 after payment of IRBs was denied in writing on February 27, 2017. It submits that the notice sent to both the applicant and his counsel was clear, as it detailed the reason for the denial (his return to work), the process for appeal (the dispute sheet was attached) and the applicable two-year limitation period (bolded). With regard to the disputed treatment plan, Primmum submits it also provided clear notice of refusal on April 28, 2017 and the applicant failed to appeal within the limitation period. Primmum submits that there are no grounds to extend the limitation period to allow the applicant to apply.

6In response, the applicant submits that he did not miss the limitation period because a valid denial was never issued. He submits that the letters cited by Primmum do not meet the requirements of s. 37(4) or s. 54 as they do not advise him of the medical reasons for the denial and do not provide him with written notice of his right to dispute the refusal. Rather, the applicant argues that the letters set out “conditions on the reinstatement of benefits” and specifically inform him that he cannot apply to the Tribunal.

7On review of the notice dated February 27, 2017, I agree with Primmum that it clearly denied the IRB effective January 9, 2017. The letter indicates that Primmum received confirmation from the applicant’s employer that he had returned to full-time work duties after a graduated return. The notice then clearly states that “Therefore your [IRB] ceased effective January 9, 2017 as you have returned to work.” Further, attached to the letter was a separate page explaining how the applicant could dispute the decision and the two-year limitation period to do so is bolded. This denial was referenced in the subsequent correspondence between the parties. For example, the August 4, 2017 letter reiterates that the IRB “has a stoppage effective date of January 9, 2017 as he returned to work.”

8In a similar vein, I find that Primmum provided clear notice of refusal to pay the OCF-18 in dispute on April 28, 2017. The notice letter identifies the benefit claimed (a treatment plan in the amount of $1,050 dated March 22, 2017), clearly states that it did not agree to pay for the goods and services described, provides a valid medical reason (documentation received indicates that the applicant was discharged from treatment in December 2016), and indicates that a s. 44 IE would be scheduled. Based on the letter dated August 8, 2017 stating that the OCF-18 was not payable as a result of non-attendance, it does not appear that the applicant attended at the s. 44 IE and, as above, the applicant failed to appeal this denial within the limitation period.

9While I am alive to the applicant’s position, it is difficult to fathom how the language used in these letters was not clear and unequivocal or not directed to an unsophisticated person, and especially so where the applicant was represented by counsel when the notices were issued. I note that the level of detail in the letters that is specific to the applicant’s claim is greater than most denial letters that come before the Tribunal. When an applicant returns to full-time employment, an insurer is not required to conjure up or fabricate a medical reason for stopping an IRB—the medical reason is the applicant’s return to work. Additionally, it is well-settled that subsequent communication between the parties or the insurer’s ongoing obligation to adjust the file does not extend or toll the limitation period. Rather, the limitation period is trigger by a single event: the refusal to pay the IRB.² I find that a clear refusal occurred here and since it was continuously referenced in subsequent communications, it cannot be refuted.

10In my view, there is also nothing contradictory about Primmum’s position, as alleged by the applicant, nor are the notices ambiguous. Given the volume of correspondence between the parties, I find it cannot be said that the applicant was confused or misled. The case law on this issue is also rather settled and the applicant has offered no authority to support his position that the denial letters were actually “conditions on the reinstatement” of his benefits that somehow did not trigger the limitation period. Indeed, I find the February 27, 2017 and April 28, 2017 denial letters easily meet the requirements outlined in Smith and therefore triggered the two-year limitation period. As the applicant submitted his application on September 24, 2019, he failed to appeal to the Tribunal within two years and is therefore statute-barred under s. 56.

11For completeness, s. 7 of the Licence Appeal Tribunal Act does provide the discretion to extend a limitation period if it determines there are reasonable grounds to do so. The consideration depends on the specific facts of each case but are based on four factors: a bona fide intention to appeal; the length of the delay; the prejudice to the other party; and the merits of the appeal. However, the applicant did not cite to s. 7 and provided no specific submissions to support an extension to allow him to proceed with his application.

12In any event, I agree with Primmum that an extension is not warranted. The applicant filed his application with the Tribunal seven months after the two-year limitation period of the IRB denial had elapsed and five months after the two-year mark from denial of the OCF-18. This is a significant delay. Primmum has repeatedly requested a copy of the applicant’s Record of Employment since July 2017 and the applicant did not provide same until April 2020. That record indicates that the applicant was terminated as a result of changes in the business. Similarly, the applicant consistently failed to provide an updated OCF-3 and refused to attend s. 44 IEs to assess his ongoing entitlement to the benefits claimed. On these facts, the prejudice to Primmum in letting the applicant proceed is obvious, as it has not been provided the opportunity to contemporaneously assess the applicant’s claims. While not determinative, these facts also lead to difficulty in assessing the merits of the applicant’s claim—I agree with Primmum that where no submissions were provided, the merits of a potential appeal are insufficient to warrant an extension of the limitation period.

Section 55

13Section 55(1)2 of the Schedule provides that an insured shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance. A notice under s. 44(5) must state the medical reason for the examination, whether the insured’s attendance is required, the name, title and designation of the person conducting the IE and the date, time, and location of same.

14On April 21, 2017, Primmum requested a new OCF-3 to determine the applicant’s ongoing entitlement to IRBs. When it was not received, Primmum scheduled s. 44 IE’s to assess ongoing entitlement to IRBs. This notice was delivered on June 9, 2017 and identified that IRBs were at issue and indicated that the IEs had been scheduled when no OCF-3 was provided. Detailed particulars of the assessment were provided on June 9, 2017. The applicant failed or refused to attend all the scheduled IE’s. As a result, Primmum rescheduled the assessments and provided notice on July 25, 2017. Again, the applicant failed or refused to attend all of the rescheduled IE’s.

15The OCF-18 in dispute was denied in writing on April 28, 2017. In the letter, Primmum advised the applicant that he was required to attend an IE to determine whether the proposed treatment was reasonable and necessary. A further IE was subsequently scheduled with notice delivered on May 26, 2017. The applicant failed to attend all of the schedule IE’s.

16On these facts, Primmum submits that the applicant has failed to attend multiple properly scheduled s. 44 IE’s and, as a result, he is statute-barred from proceeding with his application under s. 55(1)2. In response, while the applicant offers several tangential reasons to justify his non-attendance at the IE’s, the thrust of his position is that he has since consented to attending the IE’s and that Primmum refuses to reschedule them.

17On review, I find all of the notices referenced above easily comply with the requirements for scheduling and notifying an applicant of an IE under s. 44 of the Schedule. Each notice identifies the benefit claimed, the name and specialty of the assessor, the date, time, and location of the IE and whether the applicant’s attendance was required. Subsequent notices also reference IE’s that the applicant failed or refused to attend. Primmum made several attempts to reschedule the IE’s to benefit the applicant. I find it cannot be said that the applicant was confused or misled by the notices in evidence or that he was unable to make a determination not to attend. Indeed, there is correspondence before the Tribunal indicating that the applicant was aware of the IE’s and willingly chose not to attend.

18Where Primmum has repeatedly asked the applicant to attend s. 44 IE’s since 2017 and provided proper notice of same, the applicant’s offer to finally attend at the IE’s in May 2020 after the scheduling of this hearing is not sufficient to excuse his non-attendance in the years prior. The applicant also failed to provide specific submissions on potential terms and conditions that the Tribunal could apply under s. 55(3), so it is not appropriate to allow the applicant to proceed with his application under s. 55(2) where Primmum has not been provided the opportunity to fully or contemporaneously assess his claim due to his failure to attend the IE’s. Accordingly, for these reasons, I find the applicant is also statute-barred from proceeding with his claim under s. 55(1)2.

ORDER

19The applicant is statute-barred from proceeding with his application under s. 56 as it was commenced more than two years after valid denials by Primmum. There is no basis to extend the limitation period to allow him to proceed. The applicant is also statute-barred from proceeding with his IRB claim under s. 55(1)2 due to his failure to attend at properly scheduled s. 44 IE’s.

20If the parties elect to proceed on the remaining substantive issues, they are directed to contact the Tribunal to schedule a case conference.

Footnotes

1. 1Smith v. Co-operators General Insurance Co., 2002 SCC 30, 2002 2 S.C.R. 129 (SCC).
2. 2Bonilla v. Preszler, 2016 CarswellOnt 16115 (ONCA), at paras. 8-12.