24-009510/AABS-PI
Licence Appeal Tribunal File Number: 24-009510/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:
Vigneswarajah Subramniam
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Kevin So, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Vigneswarajah Subramniam (the “applicant”) was involved in an accident on August 9, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in his application because he failed to dispute their denial within the 2-year limitation period?
RESULT
3The applicant is statute barred from proceeding with his application pursuant to section 56 of the Schedule.
PROCEDURAL ISSUE
4The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order (CCRO) identified the preliminary issue, indicates that it was to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. I am satisfied that the applicant received notice of this preliminary issue hearing, given that he was present at the case conference along with his counsel, and the CCRO was sent to the addresses on file. Despite this order no submissions were filed on behalf of the applicant.
ANALYSIS
5The benefits in dispute identified in the CCRO include income replacement benefits and seven treatment plans. The respondent has since agreed to fund three of the treatment plans, and thus only four plans remain in dispute.
6The respondent submits that there was a clear and unequivocal denial of the benefits in dispute, triggering the limitation period, and the applicant did not appeal the denial within two years.
Law
7The limitation period for accident benefits claims is set out in section 56 of the Schedule. It states that applications to dispute the denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the benefit.
8In order for section 56 to be triggered, the respondent must have provided a valid notice of denial in accordance with the principles set out in Smith v. Co-operators General Insurance Company, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.
9Further, pursuant to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), the notice must provide a valid medical and any other reason for the denial.
10The Court of Appeal confirmed in Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”) that the insurer is not always required to provide a medical reason when denying a benefit. The reasons need to be sufficient, but can be either medical, non-medical, or both.
The respondent’s denial notices are compliant with the Schedule
The denial of the income replacement benefits is valid
11I find that the letter dated March 14, 2022 is a valid denial of the income replacement benefits, triggering the limitation period. It identifies the benefit in dispute and indicates that he was not eligible for the benefit because he did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment, pursuant to the findings of the insurer’s examinations.
12The denial was sufficiently clear, provided valid reasons for the denial, outlined the dispute resolution process, and the two-year time limit to dispute the decision. I find that the limitation period for the income replacement benefit was triggered on March 14, 2022 by a valid denial.
The denial of the treatment plan for social work services dated December 28, 2020 is valid
13The treatment plan dated December 28, 2020 for social worker services totalling $3,222.89 was partially approved up to $2,980.07. The balance was denied by the respondent by letter dated February 24, 2021.
14I find that the letter is a valid denial notice. It identifies the disputed plan, and provided reasons as to why certain amounts were only partially payable. It clearly indicates that the hourly rate approved was $112.22 per hour rather than the $125.00 per hour claimed given the provider’s profession/designation. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
15The limitation period for the plan for social work services was triggered on February 24, 2021, by a valid denial.
The denial of the treatment plan dated July 20, 2020 for psychological services is valid
16The treatment plan dated July 20, 2020 for psychological services totalling $3,757.32 was partially approved up to $2,798.82. The balance of $964.50 was denied by the respondent by letter dated August 11, 2020.
17I find that the letter dated August 11, 2020 is a valid denial notice. It identifies the disputed plan, and indicates which line items were approved, and those that were not, and in accordance with the hourly rates set out in the professional services guidelines. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
18The limitation period for the plan for psychological services was triggered on August 11, 2020 by a valid denial.
The denial of the treatment plan for physical rehab services dated December 12, 2020 is valid
19The treatment plan dated December 12, 2020 for physical rehab services totalling $1,759.30 was initially denied by the respondent by letter January 4, 2021. Following completion of insurer’s examinations, the respondent provided a further letter dated February 16, 2021.
20I find that the letter of February 16, 2021 is a valid denial notice. It identifies the disputed plan, that the insurer’s examination determined that he suffered from soft tissue injuries, and that further treatment was not expected to provide any additional benefit. As such he continued to qualify for treatment under the Minor Injury Guideline, but the treatment plan was not reasonable or necessary. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
21The limitation period for the plan for social work services was triggered on February 16, 2021 by a valid denial.
The denial of the treatment plan for cognitive behaviour and occupational therapy services dated May 27, 2021 is valid
22The treatment plan dated May 27, 2021 for cognitive behaviour and occupational therapy services totalling $4,624.52 was denied by the respondent by letter September 10, 2021 following completion of a psychological insurer’s examination. The respondent provided a further letter dated September 20, 2021 following the occupational therapy insurer’s examination.
23I find that these letters are a valid denial notice. The letters identify the disputed plan, that the plan was denied because the insurer had already approved psychological treatment sessions with another provider, and he continued to remain independent with his self care and household chores. Therefore the treatment plan was not reasonable or necessary. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
24The limitation period for the plan for cognitive behaviour and occupational therapy services was triggered on September 20, 2021 by a valid denial.
The application was not filed within the limitation period
25I have found valid denials of all of the benefits in dispute triggering the limitation periods. The limitation period to file his appeal of the benefits in dispute expired as follows:
i. Income replacement benefits – March 22, 2024
ii. Treatment plan for social work services – February 24, 2023
iii. Treatment plan for psychological services – August 11, 2022
iv. Treatment plan for physical rehab – February 16, 2023
v. Treatment plan for cognitive behaviour and occupational therapy services – September 20, 2023
26The application to the Tribunal was filed on July 31, 2024. Therefore, the applicant did not file his application for any of the benefits in dispute within the limitation period.
27Pursuant to section 7 the Licence Appeal Tribunal Act, 1999 the Tribunal has statutory discretion to extend the two-year limitation period based on four factors: a bona fide intention to appeal within the limitation period; the length of the delay; prejudice to the other party; and the merits of the appeal (see: Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997; Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. In the absence of any submissions, the applicant has not discharged his onus to establish why I should exercise my discretion to extend the limitation period. I have no basis to find that any of the factors weigh in his favour in order to extend the limitation period. Therefore, I decline to do so.
ORDER
28The applicant is statute barred from proceeding with his application pursuant to section 56 as it was commenced more than two years after valid denials from the respondent.
29The application is dismissed.
30The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: December 16, 2024
Kate Grieves
Adjudicator