Licence Appeal Tribunal File Number: 19-011384/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:
Nikolai Larionov
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Aurora Mancuso, Counsel
For the Respondent: Patrick Brennan, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Nikolai Larionov (“the applicant”) was involved in an automobile accident on September 16, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by Intact Insurance (“the respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent raises the following preliminary issue:
- Is the applicant barred from seeking income replacement benefits because he failed to commence his application within two years of the date of the respondent’s denial, in accordance with s. 56 of the Schedule?
3I have addressed the preliminary issue in my analysis below.
ISSUES
4The issues in dispute are:
Is the applicant entitled to income replacement benefits at the rate of $400.00 per week from May 21, 2017 to date and ongoing?
Is the respondent entitled to repayment of income replacement benefits in the amount of $5,653.93?
Is the applicant entitled to $2,200.00 for the cost of completing an OCF-19 (Application for Determination of Catastrophic Impairment) by Dr. Robertus, dated December 20, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is barred from pursuing his claim for income replacement benefits pursuant to s. 56 of the Schedule.
6The respondent is entitled to repayment of income replacement benefits in the amount of $5,653.93, with interest.
7The applicant is not entitled to the cost for completing the OCF-19.
ANALYSIS
The applicant is statute-barred from proceeding with his claim for income replacement benefits
8The respondent submits that the applicant is out of time to dispute his entitlement to income replacement benefits (“IRBs”), having done so beyond the two-year limitation period noted in s. 56 of the Schedule and the Limitation Act, 2002, S.). 2002, c. 24, Sched. B.
9The applicant made an application for IRBs via a Disability Certificate OCF-3 dated September 23, 2014. A further OCF-3 was submitted in support of his IRB claim dated January 23, 2017.
10By correspondence dated May 17, 2017, the respondent notified the applicant the results of the May 2017 multi-disciplinary assessments and advised him that his eligibility for post-104 week IRBs was terminated effective May 21, 2017.
11The applicant did not file an application disputing this termination until October 17, 2019, beyond the two-year limitation by 154 days.
The denial was clear and unequivocal
12The applicant submits that the respondent’s denial did not provide sufficient medical and other reasons pursuant to s. 37(6) and was therefore deficient per the Schedule.
13I find the letter of May 17, 2017 which terminated the IRB claim was a valid and proper refusal to pay the benefit. It uses clear, straightforward language as set out in the Ontario Court of Appeal case of Smith v. Co-Operators General Insurance Company, 2000 CanLII 4138 (ON CA) (“Smith”) which confirmed that the correct legal test for the triggering of a limitation period is a clear and unequivocal refusal of benefits by the insurer and reasons that allow an insured to decide whether to dispute the refusal.
14The letter met the basic requirements of Smith – it advised the applicant of the denial, it provided reasons for the denial, and straightforward language regarding his right to dispute the termination if he disagreed, and the two-year time limit to dispute the denial.
15The respondent’s subsequent request for repayment has no bearing on whether there was a clear and unequivocal refusal, nor affected the limitation period in any way. The applicant has provided no explanation for the failure to file within the two-year period. I find that there was a clear and unequivocal refusal to pay the IRB, triggering the limitation period under s. 56 of the Schedule and the applicant failed to dispute the denial within two years.
Extension of the Limitation Period
16The Tribunal has discretion to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12 Sched. G. In determining whether to grant an extension of time, the Tribunal considers four factors, as set out in A.F v. North Blenheim Mutual Insurance Company 2017 CanLII 87546 (ON LAT), as follows:
The existence of a bona fide intention to appeal within the appeal period;
The length of the delay;
Prejudice to the other party; and,
The merits of the appeal.
17The applicant bears the onus to establish that the justice of the case requires the granting of the extension. No one factor is determinative, they must all be weighed in the analysis. In applying the four factors, I find that based on the justice of the case, I should not exercise my discretion to extend the limitation period.
18The delay was considerable (approximately five months), and I’m not persuaded that the applicant intended to appeal that refusal to pay within the two-year limitation period; he was represented by counsel throughout the period in question, and has provided no explanation for the delay in filing the application.
19The applicant submits that he had a bona fide intention to dispute any denial of the IRB since one-week post-accident, when he filed an application for mediation. It was the clear and unequivocal refusal to pay the benefits in the May 17, 2017 letter that triggered the limitation period. The prior application is not relevant. The question is not whether he intended to dispute the refusal, it is whether he had the intention to dispute the refusal within the limitation period. He has not provided any explanation as to why the application was filed five months late. There is no issue of discoverability in this case, such as a change in circumstances in his ability to work, or further assessments of IRB entitlement to justify or excuse a late application.
20Limitation periods are not to be set aside lightly (see M.T.G. v. Aviva General Insurance, 2020 CarswellOnt 2321). The prejudice to the respondent in such situations includes prejudice to its ability to regulate its affairs on the basis of legislative requirements and ability to stand ready to defend a claim within a regulated timeframe and adjust a claim accordingly. The applicant submits that the prejudice to the respondent can be remedied but fails to indicate how.
21The purpose of the merits test is to filter out cases which, on their facts, have little or no chance of success. I have considered the applicant’s submissions, and this is not a case where the claim is totally meritless. The applicant in his submissions relies on catastrophic determination assessment from April 2022 that identify various disabilities and functional limitations in support of his claim for IRBs. However, the reports do not address the test for post-104 week IRB entitlement, and have not been subject to responding insurer’s examination reports. The applicant provided minimal eligibility or entitlement evidence on post-104 IRB entitlement since the IE assessments of May 2017. Given the passage of time, and the applicant’s reliance on the catastrophic assessment reports, the respondent is prejudiced in its ability to fully respond and adjust the claim.
22Based on the justice of the case, I am not persuaded that I should exercise my discretion to extend the limitation period. The applicant is statute barred from proceeding with his claim for IRBs.
Repayment of Income Replacement Benefits
23The applicant worked as a self-employed contractor pre-accident. The respondent paid the applicant an IRB from September 24, 2014 to May 21, 2017, at $400.00 a week.
24The applicant qualified for CPP Disability Benefits in January 2017, paid retroactively to April 1, 2015, which are deductible from IRB quantum under s. 47 of the Schedule. The respondent retained an accountant to calculate any IRB overpayment.
25By letter dated November 20, 2017, the respondent advised that the overpayment amounted to $25,910.48. By way of correspondence dated March 20, 2018, the respondent conceded that the Schedule limits recovery of overpayment of income replacement benefits to 12 months prior to the time the insured person was notified of the overpayment, and therefore the amount sought was reduced to $5,653.93.
26In his submissions, the applicant concedes that the amount of the repayment owed is $5,653.93 but requests that the payment be deferred to the time of a full and final settlement of his claim. The Tribunal has no jurisdiction to make such an order, nor is there a requirement for a full and final settlement of any claim.
27The respondent is entitled to repayment of IRBs in the amount of $5,653.93, plus interest in accordance with the Schedule.
The applicant is not entitled to $2,200.00 for the cost of preparing an OCF-19
28The applicant has not met his burden to prove that this was a reasonable and necessary expense. The applicant’s submissions do not explain how or why this was a reasonable and necessary expense. The applicant simply points out that an OCF-19 was submitted under Criteria 7, he subsequently underwent comprehensive assessments, and a second OCF-19 was submitted under criteria 7 and 8. The applicant submits that he is entitled to $2,200.00 for the cost of completing the initial OCF-19 form.
29I find that $2,200.00 fee for an OCF-19 completion to be excessive, and not reasonable and necessary.
30A treatment and assessment plan (OCF-18) was submitted by Dr. Inese Robertus dated January 10, 2018, in the amount of $2,200.00, which vaguely stated it was for $1,000.00 for “preparation, service”, $200.00 for “documentation, support activity for claim form”, and $1,000.00 for “documentation, support activity”.
31By letter dated March 15, 2018, the respondent denied the OCF-18 on the basis that, without further information detailing the nature and purpose of the proposed services, it was deemed not reasonable and necessary.
32By letter dated May 18, 2018, the applicant advised that the OCF-18 was that it was for document review, summary report writing, and completion of an OCF-19.
33The respondent advised by letter dated May 24, 2018 that it maintained that its denial, as the fees for the preparation of an OCF-19 and reviewing documents were excessive.
34An OCF-19 dated December 20, 2019 was prepared by Dr. Robertus. It consists of two pages wherein he checked off three boxes and signed the form. The OCF-19 also included an alternate, unsubmitted, version of the disputed treatment plan with an undated, unauthored 12-page document that appears to be an incomplete summary of the applicant’s medical file, without a report.
35I find that the applicant has not met his burden to prove that this was reasonable and necessary expense. The OCF-18 submitted lacked sufficient detail to conclude that it is reasonable and necessary, and completing an OCF-19 requires minimal time given its nature.
ORDER
36The applicant is barred from pursuing his claim for income replacement benefits pursuant to s. 56 of the Schedule.
37The respondent is entitled to repayment of income replacement benefits in the amount of $5,653.93, with interest.
38The applicant is not entitled to the cost of the completing the OCF-19.
Released: December 6, 2023
Kate Grieves
Adjudicator