Release date: 08/13/2021
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:
Jing Li
Applicant
and
The Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Charu Mehta, Counsel
For the Respondent:
Bruce Keay, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jing Li, (“the Applicant”), was involved in an automobile accident on January 21, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“the Schedule”).
2The Co-operators General Insurance Company, (“the Respondent”), refused to pay for certain income replacement benefits (“IRBs”) and medical benefits. In response, the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of this dispute.
3The Respondent raised a preliminary issue prior to the hearing. It asserts that the Applicant is statute-barred from filing an application pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act. The preliminary issue is the subject of this hearing.
PRELIMINARY ISSUES
4The preliminary issue is as follows:
- Is the Applicant statute-barred from appealing the denial of the following benefits because she failed to commence her appeal within two years of the date that her claim for each benefit was denied, as required by section 56 of the Schedule?
a) Is the Applicant entitled to a medical benefit in the amount of $3,717.20 for chiropractic services, denied by the respondent June 30, 2016?
b) Is the Applicant entitled to IRBs in the amount of $400.00 per week for the period January 25, 2016 to date and ongoing?
c) Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month?
RESULT
5I find that the Applicant is barred from appealing the denial of the chiropractic treatment plan pursuant to section 56 of the Schedule.
6The Applicant failed to commence her appeal within two years of the denial of her IRBs. However, I choose to extend the deadline to appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“the LAT Act”) 1. Thus, she may proceed with her appeal on this issue.
7There is no evidence before me to indicate that the Respondent refused to pay ACBs. Thus, the limitation clock never started.
8However, the true issue in dispute with respect to ACBs is whether section 55 bars the Applicant from proceeding with her appeal on this issue. I received no submissions directly related to the issue and choose to send the issue back to the parties to address at the next case conference. I provide some guiding instructions below.
BACKGROUND
9The Applicant was the driver of a sedan which was struck on the passenger side by a truck exiting a driveway. She sustained neck, shoulder and back strains as a result of the accident and was later diagnosed with somatic symptom disorder with predominant pain as well as a major depressive disorder.
10The Applicant was on leave from work at the time of the accident, due to pre-existing depression. She applied for IRBs from the Respondent, which accepted her claim, but determined the quantum of the benefit was $0 because the Applicant was receiving disability benefits from her extended health carrier.
11The Respondent conducted Insurer’s Examinations (“IEs”) in Spring 2016. The resulting reports found that the Applicant did not qualify for IRBs. The Respondent wrote to the Applicant on May 12, 2016 and advised that the Applicant’s entitlement to IRBs will stop on May 27, 2016. The Applicant continued to receive disability benefits from her extended heath carrier following the Respondent’s denial.
12The Applicant’s extended health carrier approved her for long-term disability benefits about a year later, on March 3, 2017. The onset of the Applicant’s disability was determined to be December 31, 2015, which pre-dates the subject accident.
13A few months later, on June 26, 2017, the Applicant applied for a determination of catastrophic impairment. The Applicant and the Respondent conducted independent catastrophic impairment assessments during the next year and a half and the Respondent formally denied the Applicant’s claim for a determination of catastrophic impairment on January 2, 2019.
14The Applicant’s long-term disability benefits were denied on March 1, 2018. This was during the period when catastrophic impairment assessments were being conducted.
15The Applicant submitted another disability certificate on February 6, 2019. It noted that she was unable to complete the essential tasks of her employment as a result of the accident.
16The Applicant filed her application with the Tribunal (“Application”) on March 2, 2020, almost four years following the initial IRB denial.
POSITIONS
17The Respondent submits that the Application should be barred pursuant to section 56 of the Schedule because more than two years have passed since it denied entitlement to IRBs and the disputed chiropractic treatment plan.
18The Respondent further submits that the Applicant cannot dispute entitlement to ACBs because she never submitted a Form-1 or incurred any related expenses.
19The Applicant submits that the Respondent’s May 12, 2016 letter is not a refusal to pay because her IRB quantum, at that time, was $0. In the alternative, the Applicant submits that Tomec v. Economical Mutual Insurance Company2 (“Tomec”) provides that her claim was not discovered until her condition deteriorated, which resulted in her submission of the OCF-3 dated February 6, 2019. In the further alternative, the Applicant submits that the limitation period, should it apply, should be extended pursuant to section 7 of the LAT Act.
20With respect to ACBs, the Applicant submits that this is not the appropriate forum to address whether ACBs were incurred. She submits that whether the benefits were incurred is not the only issue and that the Tribunal may deem the expenses to be incurred if they were unreasonably withheld. She submits that a full hearing on the evidence is required to address entitlement to ACBs.
21In reply, the Respondent submits that the limitation period should not be extended because the Applicant showed no signs of a bona fide intention to appeal the denial, and because the overall delay in disputing entitlement, which is more than four years, is significant. The Respondent further submits that the Applicant failed to directly address the issue of ACBs and that her claim for ACBs must be dismissed because there is no evidence that the Applicant was entitled to or ever claimed entitlement to the benefit.
THE LAW
22Pursuant to section 56 of the Schedule, the Applicant is required to commence a proceeding within two years of the Respondent’s refusal to pay the amount claimed.
23section 7 of the LAT Act provides the discretion to extend the limitation period. In order to extend the limitation period, I must assess the matter based on the following four factors (“the Manuel Factors”): a bona fide intention to appeal; length of the delay; prejudice to the other party; and the merits of the appeal.3 The four factors are not strict elements that must be met and may push or pull differently when analysing whether to extend the limitation period.
ANALYSIS
24Up front, I find that Tomec has little application to this matter. Tomec provides that the limitation clock does not start at the denial of certain benefits, if the denial occurs before it is possible to become entitled to the benefit being denied. Here, the Applicant’s claims for benefits are independent of any other determination. She was permitted to appeal those denials at any time regardless of the status of her catastrophic impairment claim, as explained below.
The Chiropractic Treatment Plan Dated June 30, 2016
25I find that the Applicant is barred from disputing this denial because more than two years have passed since it was denied, and the Manuel Factors weigh in favour of the Respondent.
26The Applicant provides no reason as to why this treatment plan was not disputed within the two-year limitation period. She makes no suggestion that the denial is invalid or should not apply.
27The Manuel Factors weigh in favour of the Respondent with respect to this treatment plan. The two-year delay beyond the expiration of the limitation period is unjustified for a minor issue like this treatment plan. The delay carries significant weight when considering the Manuel Factors as they apply to this single issue. I find the merits of the appeal is marginal considering that psychological injuries are the Applicant’s predominant health issue.
28The Applicant’s only submission is that there is no prejudice to the Respondent in permitting this issue to be decided on its merits. While the prejudice to the Respondent may be limited or minimal, this factor is outweighed by the others. It would be unreasonable for the Respondent to be forced to defend the denial of a relatively minor issue in an untimely manner such as this.
IRBs
29I find that the Applicant failed to file her appeal within the two-year limitation period but I chose to exercise my discretion under section 7 of the LAT Act to extend the limitation period for this issue because the Manuel Factors weigh in favour of the Applicant.
30The Respondent denied IRBs in the May 12, 2016 letter. The notice is proper in that it identifies the benefits being denied, clearly advises the Applicant that she is no longer entitled to the benefits, provides the effective stoppage date of May 27, 2016, and refers the Applicant to the right to dispute information.
31The IRB quantum does not factor in the start of the limitation clock. There are two components to IRBs: Entitlement – whether the Applicant qualifies for the benefit, and quantum – the amount of benefit payable. Here, the Applicant was entitled to IRBs. However, the quantum of the benefit was $0 due to a deduction for the temporary disability benefit payments the Applicant was receiving from her extended health carrier at that time.
32The deterioration of the Applicant’s condition has no impact on the discoverability of her claim. The test for IRBs is whether the Applicant sustains a substantial inability to perform the essential tasks of her employment as a result of and within 104 weeks of the accident. Here, the Applicant’s claim for IRBs was discoverable once she sustained an impairment which prompted her to submit the January 23, 2016 disability certificate. I find that the Applicant’s discoverability position is not applicable to her claim period of January 25, 2016 to-date and ongoing. However, I acknowledge that the Applicant was correct to submit the February 6, 2019 disability certificate because her condition changed and she is required to advise the respondent of such a change, particularly if she intended to claim entitlement to the benefit.
33The Applicant’s claim has merit in that she suffers from significant psychological injuries which prompted her to apply for a determination of catastrophic impairment. The prejudice to the Respondent is mostly mitigated because it conducted IEs and based its decision to deny IRBs on the subsequent reports. Further, the Respondent has conducted multidisciplinary catastrophic impairment assessments since its denial of benefits and may also rely on the reports from those assessments when considering or disputing whether the Applicant is entitled to IRBs.
34The length of delay is either non-existent or significant, depending on the perspective of the party. Here, the Respondent sees a significant delay because the Applicant filed her Application on March 2, 2020, nearly four years following the May 12, 2016 denial of IRBs. Whereas the Applicant sees no delay because the Application was made on March 2, 2020 and, to her, IRBs were truly stopped on March 1, 2018 when her extended health carrier stopped paying temporary disability benefits. Alternatively, the Applicant submits her Application was made about 14 months after her condition deteriorated and she discovered her claim. While I agree that the length of delay is substantial, I give this factor little weight in my analysis considering the Applicant’s psychological health at the time of the accident and thereafter. Further, similar to the prejudice factor, the length of delay is partly mitigated because the Respondent conducted catastrophic impairment assessments throughout the period of delay.
35I believe that the Applicant had a bona fide intention to appeal within the Appeal period. As noted above, she filed an Application exactly two years from the date her temporary disability payments were stopped. The timing suggests that she intended to appeal within the two-year limitation period and legitimately believed she was appealing within the limitation period. Further, she submitted disability certificates which is indicative of an intention to claim entitlement to IRBs.
ACBs
36I find that the two-year limitation period in section 56 of the Schedule is not applicable for this issue because there is no evidence showing that the Respondent refused to pay ACBs to the Applicant.
37The Respondent, in its submissions, states that the Applicant has not applied for ACBs. It noted that no Form 1 and no expenses were ever submitted and that there is no evidence that the Applicant incurred ACB expenses.
38The two-year limitation clock cannot start without a refusal to pay benefits. Instead, it appears that the issue in dispute is whether the Applicant notified the Respondent of a claim for ACBs and is barred from proceeding with her Application pursuant to section 55 of the Schedule. This issue is not what is outlined in the Order and the parties made no submissions on the application of section 55 of the Schedule.
39In situations like this, an adjudicator will typically request additional submissions from the parties. However, considering that the Applicant may proceed with her Application with respect to her entitlement to IRBs, and that a request for additional submissions may tip the decision, I feel it is best to put the issue back to the parties to decide how it should be addressed.
40The issue will be addressed at the case conference following the release of this decision. The parties have two options to explore at the case conference, in the event they remain unable to resolve the issue: they can address ACBs, including the application of section 55 of the Schedule, at a substantive hearing, or, they can address the discreet issue by way of motion hearing and the Tribunal’s dedicated motion team can render a decision on the issue prior to the substantive hearing. The case conference adjudicator will hear submissions and make the choice for the parties in the event the parties are unable to agree on a course of action to address the dispute.
CONCLUSION AND ORDER
41The Applicant took more than two years to dispute the denial of the chiropractic treatment plan. She is statute-barred from disputing the denial, pursuant to section 56 of the Schedule. I choose not to exercise my discretion to extend the deadline to dispute this issue, pursuant to section 7 of the LAT Act.
42The Applicant took more than two years to dispute the denial of her entitlement to IRBs. However, the Manuel Factors weigh in her favour on this issue and, as a result, I will extend the deadline to dispute the issue. Thus, she is entitled to proceed with her Application on the issue of her entitlement to IRBs.
43There is no evidence to show that the Respondent denied entitlement to ACBs. Thus, the limitation clock has not started, and the Applicant may proceed with her Application to dispute the issue of her entitlement to ACBs.
44However, the true ACB dispute before me is whether the Applicant is barred from proceeding with her Application on the issue, pursuant to section 55 of the Schedule. As outlined above, the parties may choose whether to address the issue in the substantive hearing or have the issue addressed by way of motion prior to the substantive hearing.
45In the event that the parties are unable to agree on the format to address whether section 55 of the Schedule applies to the ACB dispute, the case conference adjudicator will hear submissions from the parties and choose the appropriate course of action.
46The parties are ordered to contact the Tribunal following the release of this decision and provide dates for a case conference.
Date of Issue: August 13, 2021
Brian Norris, Adjudicator
Footnotes
- Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G
- 2019 ONCA 882
- Manuel v. Registrar, 2012 ONSC 1492.