Licence Appeal Tribunal File Number: 24-003018/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:
Anastasios Gerasimopoulos
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Sam Spadafora, Counsel
For the Respondent:
Eric Grossman, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Anastasios Gerasimopoulos (the “applicant”) was involved in an incident on February 24, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The applicant was denied benefits by Co-operators General 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 this application because the applicant failed to dispute the denial of their request for a catastrophic impairment determination within the 2-year limitation period?
RESULT
3The applicant may proceed to the hearing.
ANALYSIS
4The substantive issues in dispute include whether the applicant sustained a catastrophic impairment and entitlement to an award under s. 10 of Regulation 664. There are no medical or other benefits in dispute.
5The respondent submits that the limitation period to dispute the denial of the catastrophic impairment has lapsed, and the application should therefore be barred. I find that the limitation period was not triggered because a catastrophic impairment is not a benefit.
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 must be initiated within two years after the insurer’s refusal to pay the amount claimed.
7By way of background, the applicant submitted an application for catastrophic impairment (OCF-19) on May 11, 2020. On May 19, 2020 the respondent acknowledged receipt of the OCF-19, advised that his claim was denied, and that he was required to attend insurer examinations (“IE”). By letter dated May 31, 2021, the respondent notified the applicant that it had determined that he was not catastrophically impaired and enclosed copies of the IE reports. The letter included a warning of the two-year limitation and outlined the procedures to follow if he disagreed with the decision. Further, by letter dated March 3, 2022, the respondent advised that the applicant’s entitlement to medical, rehabilitation, and attendant care benefits had ended effective February 24, 2022 as 260 weeks had elapsed since the accident, and he was not catastrophically impaired.
8On June 3, 2021 the applicant submitted an application to the Tribunal disputing the insurer’s denial of the catastrophic determination. Eight days prior to the commencement of a videoconference hearing in November 2022, the applicant withdrew the application. He subsequently filed a second application to the Tribunal on March 7, 2024 again disputing the denial of the catastrophic impairment designation.
9The respondent submits that there was a clear and unequivocal denial on May 31, 2021 triggering the limitation period which expired on May 31, 2023.
10The respondent submits that the application on March 7, 2024 was filed after the expiration of the limitation period and should therefore be barred pursuant to section 56 of the Schedule.
11I disagree. I find that the catastrophic impairment determination is a threshold issue, it is not a direct denial of benefits, and therefore the limitation period is not triggered.
12I am bound by the Divisional Court decision in The Guarantee Company of North America v. Dong Do et al., 2015 ONSC 1891 (“Do”) and the Court of Appeal decision in Machaj v. RBC General Insurance Company, 2016 ONCA 257. The decision in Do confirmed a line of arbitral rulings that a refusal by the insurer to designate an insured as catastrophically impaired does not trigger a limitation period because the denial of catastrophic impairment status is not a “refusal to pay a benefit”. The Divisional Court noted that a catastrophic determination does not by itself bestow any monetary award but rather acts as a test of eligibility which entitles an insured person to claim a greater level of benefits.
13Similarly, in Machaj, the Court of Appeal followed Do and noted that there is a clear distinction to be drawn between the claim for determination of catastrophic status and a claim for the specific benefits to which an injured person is entitled if found to have suffered a catastrophic injury. The court held that adding words such as “therefore you do not qualify for the increased benefits” does nothing more than tell the applicant that she lacked status to claim increased benefits. The additional words did not convert what was, in substance, a denial of catastrophic impairment designation into a denial of the specific benefits that would trigger the commencement of the two-year limitation period.
14The respondent’s letter dated May 31, 2021 advised that the applicant did not meet the criteria for catastrophic impairment, and as a result, he was not eligible for medical, rehabilitation and attendant care benefits beyond the $65,000.00 policy limit, visitor expenses after 104 weeks, caregiver benefits, housekeeping and home maintenance benefits, or case manager services.
15The applicant submits that the addition of these words are, like in Machaj, an attempt to convert what is, in substance, a denial of a catastrophic determination into a denial of the specific benefits that would trigger the commencement of the two year limitation period.
16The respondent submits that the denial letters denied the claim to both a catastrophic designation and refused specific benefits with sufficient details of the dispute resolution process, and accordingly the limitation period was triggered. The respondent submits that Machaj and Do are distinguishable, because unlike the insurers in those cases, the respondent specifically indicated that the applicant was not entitled to the increased catastrophic level benefits. The respondent submits the language it used in its denial letters went further than “merely implying” that the applicant was not entitled to benefits, but rather distinctly listed benefits.
17The respondent relies on S.S. v. Economical Mutual Insurance Company, 2019 CanLII 83592 (ON LAT) in support of its position. I find the case distinguishable, as the applicant in that case was actually disputing entitlement to attendant care and housekeeping benefits, not just catastrophic impairment.
18I agree with the respondent that there may be a clear and unequivocal denial of the specific benefits that were identified in the May 31, 2021 letter sufficient to trigger a limitation period with respect to those benefits. However, whether the limitation period with respect to those specific benefits elapsed is not in issue before me, and none of the benefits (such as medical, rehabilitation, attendant care and housekeeping) are part of the substantive issues. The narrow issue before me is whether the respondent’s denial of catastrophic determination triggered a limitation period, and I find that it did not. A denial of the catastrophic level of medical benefits does not trigger the limitation period because it is a threshold, not a benefit.
COSTS
19Rule 19 of the Licence Appeal Tribunal Rules permits a party to request that the Tribunal order the other party to pay costs, where the requesting party believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. It is then within the Tribunal’s powers to consider factors such as the seriousness of the misconduct, whether conduct is in breach of a direction or order, whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, the prejudice to the other party, and the potential impact an order for costs would have on the other party.
20The respondent requested costs in the amount of $3,000.00 for “unreasonable conduct of the applicant” and “frivolous approach to deadlines”. The respondent submits that the applicant never filed any evidence to support the catastrophic impairment determination at the first application that was withdrawn shortly before the hearing, nor has the applicant filed any evidence for the current application. The respondent submits that there is no merit to the appeal, and it will be forced to prepare its witnesses a second time, and some of its witnesses may no longer be available for the hearing due to the applicant’s delay.
21To be fair, the case conference report and order requires the parties to exchange documents within 75 days of the case conference, which has not yet elapsed, and the applicant’s documents for the hearing are not due until 30 calendar days prior to the written hearing scheduled for April 17, 2025. Given that this is a written hearing, there are no witnesses to prepare. While there is some prejudice to the respondent where the applicant withdrew the previous application only to refile, I find that this conduct alone is not sufficient to attract an award for costs.
ORDER
22The applicant may proceed to the hearing as previously scheduled by the Tribunal.
Released: August 27, 2024
Kate Grieves
Adjudicator