Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006854/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:
Njegos Petkovic
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Steven Arie Glowinsky, Counsel
For the Respondent:
Sabina Arulampalam, Counsel
Matthew Stanley, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Njegos Petkovic, the applicant, was involved in a motor vehicle accident on March 4, 2018, 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 certain benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“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 income replacement benefits because the applicant failed to dispute their denial within the 2-year limitation period?
RESULT
3The applicant is not barred from proceeding to a hearing for income replacement benefits.
ANALYSIS
Background
4The applicant was in an automobile accident on March 4, 2018. The respondent found that the applicant was eligible to receive an Income Replacement Benefit (IRB) after receiving the Disability Certificate dated May 2, 2018. Eight months later, in a letter dated January 21, 2019, the respondent advised the applicant that it had reviewed recent insurer’s examinations (IEs) and determined that he was no longer entitled to the IRB.
5The applicant does not dispute the January 21, 2019 termination of his entitlement to the IRB. He continued to work after the accident, at a reduced level, and did not fully withdraw from self-employment until April 20, 2020.
6On March 23, 2023, the applicant wrote to the respondent to claim an IRB from April 20, 2020 and ongoing.
7In a letter dated May 18, 2023, the respondent advised that it informed the applicant on January 21, 2019 that his IRB was stopped.
8On June 12, 2023, the applicant applied to the Tribunal. A case conference was held on January 9, 2024 where the Tribunal issued an order for the preliminary issue to proceed by way of a written hearing.
Parties’ positions on s. 56 limitation period
9The respondent’s position is that the applicant failed to submit his application to the Tribunal within the two-year limitation period specified in s. 56 of the Schedule. The doctrine of discoverability does not apply in this case as it did in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 where there was a premature denial of the initial eligibility for the benefit. In this case the respondent terminated an already existing claim. The respondent submits that the applicant is now trying to reassert his claim for further IRBs but this cannot be done because there is no statutory provision allowing the applicant to re-apply for a benefit after that benefit is terminated.
10The applicant alleges that he can no longer work because of his accident related injuries and has now become entitled to the IRB. These circumstances are analogous to Tomec where the Ontario Court of Appeal found that it would be absurd to deny a benefit before an insured person becomes entitled to that benefit.
Pre-104 Week vs. Post 104-Week IRBs
11The parties agree that the applicant was entitled to the IRB from the date of the accident until the benefit was terminated on January 21, 2019. The applicant was working during this period and the quantum of his IRB was calculated at $0.00.
12When he stopped working in April, 2020, allegedly because of his accident-related injuries, more than two years had passed since the accident. This is significant because under s. 6(2)(b) of the Schedule a new eligibility test comes into place:
6(2) The insurer is not required to pay an income replacement benefit,
(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.
13There are two elements to this test. The insured person must have a period of disability within 104 weeks after the accident. Secondly, the insured must suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited.
14The parties agree that the applicant went through an 11 month period of disability within 104 weeks after the accident.
15In my view, the doctrine of discoverability applies. The parties agree that the applicant was found eligible for the pre-104 week IRB. That benefit was terminated, however, there is nothing in s. 6(2)(b) that prevents him from seeking a post-104 week IRB. Moreover, he cannot claim this benefit until two years have passed after the accident. This is similar to how the Court applied the doctrine of discoverability in Tomec where the insured person could not have been eligible for the attendant care benefit until after being found catastrophically impaired.
16The respondent references several binding court cases that deal with the limitation period for disputing an insurer’s termination of benefits. I am not persuaded that these cases apply to the circumstances in this case.
17In Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34, the Ontario Court of Appeal found that a return to work under s. 11 of the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O Reg 403/96 (Schedule, 1996) does not extend the limitation period for appealing the termination of the IRB. The two year period for appealing an IRB termination is triggered by the insurer’s notice of termination.
18The insured in Bonaccorso argued that the insurer’s denial letter was premature because s. 11 allows a temporary return to work without affecting the right to resume IRBs if the accident subsequently causes the insured to be unable to work. In the applicant’s case, neither party refers to s. 11. Unlike the insured in Bonaccorso, the applicant does not dispute the respondent’s January 21, 2019 determination that he was no longer entitled to the IRB. For these reasons, I find that the court’s finding in Bonaccorso, that a s. 11 return to work cannot extend the s. 56 limitation period, is not applicable to this case.
19The respondent argues that the Ontario Court of Appeal in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 confirms that the statutory scheme does not allow an insured to re-apply for a benefit once it has been terminated by an insurer.
20The insurer in Sietzema denied a NEB in 2006 on the ground that the insured was eligible for an IRB as she was employed at the time of the accident. In 2010, the insured attempted to claim the NEB. The insured argued that the insurer breached its duty to provide her with a written explanation of the benefits available to her and to assist her in applying for the NEB.
21The Court found that the insurer’s denial of the NEBs remained valid even if the reasons given by an insurer were legally incorrect and that there is nothing in the statutory scheme that requires insurers to give further notice of a right to renew a claim for a benefit that was previously denied. The Court also found that accepting the applicant’s argument would mean that the limitation period for making a claim for NEBs would never come into effect and this would defeat the Schedule’s purpose of ensuring the timely submission and resolution of claims for accident benefits.
22The insured in Sietzema challenged the validity of the denial and the s. 56 limitation in order to proceed with an NEB claim. The applicant’s position in this case is different. He is not challenging the previous denial of a benefit or the s.56 limitation period.
23I also note that the applicant is seeking to proceed with a post-104 week claim for IRBs. The January 21, 2019 denial only applies to the pre-104 week IRB. The post-104 income replacement benefit has a different test for entitlement and that test could not have been considered by the respondent until March 5, 2020, which is well after the denial. I find that Sietzema does not apply to this case because it does not address a change in the test for entitlement to a benefit.
24The respondent also relies on Bonilla 2016 ONCA 759 where the Ontario Court of Appeal found that s.56 limitation period is triggered by a single event, which is the insurer’s refusal to pay the IRB. The Court found that this is clearly set out in the statutory scheme and in the case law, such as Bonaccorso.
25The applicant’s argument rests on the principle of discoverability and the absurdity of denying a benefit before an insured person becomes entitled to that benefit. The common-law discoverability argument appears to have been raised in Bonilla. The Court rejected this argument because “the operation of the limitation period under the legislation is clear and straightforward.”1 No other details are provided. With the greatest respect to the Court, I find that more context is needed to properly grasp whether the facts and arguments in Bonilla apply to the applicant’s case.
26The respondent makes the point that no statutory provision permits an insured to re-apply for a benefit once it has been terminated by the insurer and the only possible remedy is to appeal. The applicability of this submission needs to be carefully considered in regard to the income replacement benefit. This benefit is split into two periods of time, each with its own eligibility test. Moreover, as noted above, I am not persuaded that s. 6(2)(b) of the Schedule prevents the applicant from being considered for the more rigorous post-104 week IRB test.
27I agree that s.56 bars the applicant from appealing the January 21, 2019 denial because more than two years have passed since that denial. However, the respondent’s denial of the applicant’s post-104 week claim for the IRB was issued on May 18, 2023. As such, I find that s. 56 does not bar the applicant proceeding to a hearing for post-104 week income replacement benefits.
ORDER
28The applicant is not barred from proceeding to a hearing for income replacement benefits.
Released: March 18, 2024
__________________________
Harry Adamidis
Adjudicator
Footnotes
- Bonilla v. Preszler, 2016 ONCA 759, para 12