Dowman v. Belair Insurance Company, 2024 CanLII 126342

Licence Appeal Tribunal File Number: 24-003417/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:

Melvin Dowman

Applicant

and

Belair Insurance Company

Respondent

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

Riley W. McIntyre, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Melvin Dowman (the “applicant”) was involved in an accident on May 3, 2020 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 Belair 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 may proceed to a hearing for the claim for non-earner benefits.

4The applicant is statute barred from proceeding to a hearing for the following benefits pursuant to section 56 of the Schedule:

i. $2,659.11 for physiotherapy services proposed by 101 Physio in a plan submitted November 27, 2020;

ii. $2,133.72 for physiotherapy services proposed by 101 Physio in a plan submitted March 5, 2021;

iii. $2,460.00 for a psychological assessment proposed by 101 Assessments in a plan submitted July 6, 2020;

iv. $2,460.00 for a chronic pain assessment proposed by 101 Assessments in a plan submitted December 1, 2020;

v. $4,912.80 for psychological treatment proposed by 101 Assessments in a plan submitted October 7, 2020;

ANALYSIS

5The substantive issues in dispute include the applicability of the Minor Injury Guideline, entitlement to non-earner benefits and five treatment plans.

6The 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.

7The respondent submits that there was a clear and unequivocal denial of the each of the benefits, triggering the limitation period, and the applicant did not appeal the denial within two years. Rather, the application was filed almost four years after the most recent denial by the respondent.

8The applicant does not dispute that he filed his application to the Tribunal more than two years after the respondent’s denials. However, the applicant submits that the respondent’s denials were deficient and therefore did not trigger the limitation period.

9In order for the provision under section 56 to be triggered, I must determine whether the respondent’s notice of denial was proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 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.

10The notice must provide a valid medical and any other reason for the denial. It should explain what the insured person’s medical conditions are and why those conditions do not justify entitlement to the benefit claimed. As the Divisional Court held in Hedley v. Aviva Insurance Company of Canada 2019 ONSC 5318 (“Hedley”), boilerplate medical reasons for denials of treatment plans constitute no reasons at all. Reasons must be meaningful in order to permit the insured person to decide whether or not to challenge the insurer’s determination.

11The principles for evaluating the sufficiency of reasons were set out by the Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”):

[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

12If an insurer’s notice of a refusal to pay a benefit does not satisfy these requirements, it may be determined to be invalid, and fail to trigger the two-year limitation period under s.56 of the Schedule.

The denial of the non-earner benefits is not valid

13On June 29, 2020 the respondent requested a completed statutory declaration and various medical records. By letter dated July 3, 2020 the respondent acknowledged receipt of a disability certificate which supported a claim for non-earner benefits. It did not have sufficient medical documentation on file to suggest that he had a complete inability to carry on a normal life, therefore an insurer’s examination was required.

14By letter dated November 16, 2020, the applicant was advised of the respondent’s refusal to pay non-earner benefits. I find that the denial letter was defective, as it does not identify the applicant’s medical condition(s), despite the fact that it had a disability certificate identifying various conditions, and it’s insurer’s examinations were complete. While I agree, there does not have to be a medical reason if there is no medical reason for the denial, such as when there is a lack of medical productions. However, that is not the case here. The letter simply says that based on the insurer’s examinations, it had determined that he was not entitled to the benefit as he did not suffer a complete inability to carry on a normal life as a result of his accident-related injuries. I find these reasons vague, and the language boilerplate. The notice did not meet the basic requirements outlined in Smith, therefore the limitation period was not triggered by this denial letter.

The denial of the plan for $2,659.11 for physiotherapy is valid

15While I agree with the applicant that the initial letter dated June 12, 2019 was not a valid denial a subsequent denial letter cured the deficiency.

16Following the insurer’s examination, by letter dated May 12, 2021 the respondent reiterated its denial of the treatment plan. This letter indicates that the treatment plan was denied because the applicant had already undergone a course of facility-based therapy, no significant objective accident-related physical impairments were identified by the assessor. From a physical perspective, the treatment plan was not reasonable or necessary.

17I find that this is a valid notice. It provided sufficient detail to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. It indicates that there was no significant objective impairment, and that his how his previous course of therapy did not justify entitlement to the benefit claimed. It was sufficiently clear, provides valid reasons for the denial, outlined the dispute resolution process, and the relevant time limits that govern the process. The limitation period for this treatment plan was triggered by a valid denial.

The denial of the plan for $2,133.72 for physiotherapy is defective

18Again, the initial denial letter dated March 18, 2021 was defective as it did not provide medical or other reasons for the denial. However, this deficiency was also cured by the further denial letter of May 12, 2021. It also addressed this treatment plan, and as noted above, I find it to be a valid denial triggering the limitation period.

The denial of the plan for $2,460.00 for a psychological assessment is valid

19This plan for a psychological assessment by letter dated November 16, 2020. The letter indicates that the insurer’s examination did not identify any DSM-5 diagnosis as a result of the accident, and from a psychological perspective, he sustained a minor injury.

20I find that this is a valid notice. It explained that the applicant’s lack of psychological conditions did not justify entitlement to the benefit claimed. It was sufficiently clear, provides valid reasons for the denial, outlined the dispute resolution process, and the relevant time limits that govern the process. The limitation period for this treatment plan was triggered by a valid denial.

The denial of the plan for $2,460.00 for a chronic pain assessment is valid

21The treatment plan in the amount of $2,460.00 for a chronic pain assessment was initially denied by letter dated December 15, 2020 which was defective as it did not provide medical or other reasons for the denial. However, this deficiency was also cured by the further denial letter of May 12, 2021. It also addressed this treatment plan, and as noted above, I find it to be a valid denial triggering the limitation period.

The denial of the plan for $4,912.80 for psychological treatment is valid

22This plan for a psychological treatment was also denied by letter dated November 16, 2020 following an insurer’s examination. The letter indicates that the insurer’s examination did not identify any DSM-5 diagnosis as a result of the accident, and from a psychological perspective, he sustained a minor injury. The proposed psychological treatment was not reasonable or necessary.

23I find that this is a valid notice. It explained that the applicant’s lack of psychological conditions did not justify entitlement to the benefit claimed. It was sufficiently clear, provides valid reasons for the denial, outlined the dispute resolution process, and the relevant time limits that govern the process. The limitation period for this treatment plan was triggered by a valid denial.

The application was not filed within the limitation period

24I have found a valid denial of the treatment plans in dispute triggering the limitation period. The limitation period for all of the plans was triggered on or before May 12, 2021. The application was filed with the Tribunal on March 18, 2024. Therefore, I find that the applicant did not file his application for these plans within the two-year limitation period.

25Pursuant to section 7 the Licence Appeal Tribunal Act 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. The applicant did not refer to this section, and he made no submissions on 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

26The applicant may proceed to a hearing for the claim for non-earner benefits.

27The applicant is statute barred from proceeding to a hearing for all of the treatment and assessment plans in dispute.

Released: December 16, 2024

___________________________

Kate Grieves

Adjudicator