Applicant fails to attend IE but limitation clock does not begin to run - RA v Intact Insurance Company LAT 16-003508

December 05, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

RA v Intact Insurance Company LAT 16-003508, 2017 CanLII 77360 (ON LAT)

Decision Date: 2017-11-10
Heard Before: Adjudicator Thérèse Reilly

DENIAL NOT CLEAR – NO LIMITATION PERIOD: NOE was not correct and therefore when the IE wasn’t attended the two-year limitation clock did not begin to run; NOE for the IE was not for the same benefits as mentioned in the letter attached; applicant free to proceed with the ACB claim

REASONS FOR DECISION – PRELIMINARY ISSUE

OVERVIEW

RA was injured in a car accident on May 20, 2013 and sought accident benefits pursuant to the SABs. One of the benefits claimed in the application filed with the LAT is an attendant care benefit. RA received attendant care benefits until payment of the benefit was stopped by Intact due to non-attendance at an insurer examination.

Intact asserts that its refusal was clear and unequivocal and that it properly denied the ACB on May 23, 2014 for non-attendance at IE. The application was filed November 4, 2016, more than two years after the refusal to pay the ACB.  The claim for ACB is statute barred pursuant to section 56 of the Schedule.     

RA takes the position that there has not been a proper denial of the ACB as the refusal was not clear and unequivocal. The limitation period was not triggered by a refusal to pay the benefit.   Further, RA did not miss the IE as the IE was not properly constituted.

Issue

1. Is RA’s claim for attendant care benefits statute barred because the application for attendant care benefits was filed more than 2 years after Intact’s refusal to pay the attendant care benefit pursuant to section 56 of the Schedule? 

Result:

1. RA’s claim for attendant care benefits is not statute barred pursuant to section 56 for failure to file the application within 2 years of Intact’s refusal to pay the attendant care benefit, as the examination was not properly constituted and the denial was not clear and unequivocal.  

On March 13, 2014, Intact sent a letter to RA acknowledging receipt of In Home Occupational Therapy Assessment of Attendant Care (ACB) Needs (Form 1) received March 5, 2014. Intact indicated in its letter that RA was entitled to an ACB in the amount of $728.42 per month. It also advised RA that Intact required an IE pursuant to s. 44 of the Schedule and stated an appointment was enclosed with the letter.

No NOE dated March 13, 2014 was attached to the letter or the attachments submitted into evidence. The letter also stated that RA was required to attend the IE and should she fail to do so a determination may be made that she is not entitled to receive the ACB.

Intact scheduled a number of IE appointments for RA but none were for the purpose of determining her entitlement to an attendant care benefit. It is Intact’s failure to schedule an appointment specifically related to an attendant care benefit that is at issue in this matter.

The NOE dated March 20, 2014 refers to an IE for May 6, 2014 at 1:30 p.m.  The NOE however does not refer to the ACB but states the IE is to assess for medical benefits claimed in an OCF-18 submitted March 7, 2014 by Ms. Stevens in the amount of $5,698.39. Its purpose is to assess whether the claimed medical benefit was reasonable and necessary in respect to the injuries suffered in the accident. The NOE is difficult to read. None of the boxes are checked off. It states RA is required to attend an IE on May 6, 2014 at 1:30 p.m. with an OT.    

RA maintains the NOE dated March 20, 2014, indicates an IE was to assess medical benefits and not ACB benefits. Only one notice of examination was ever delivered to RA. As such, no appointment for an assessment of the need for an attendant care benefit was ever scheduled. The May 6, 2014 assessment was scheduled to address an IE for a medical benefit in the amount of $5,698.39.

Counsel for RA acknowledged in their letter to opposing counsel on April 16, 2014 that RA would be in attendance at the In Home Assessment IE scheduled for May 6, 2014 at 1:30 a.m.  Both parties agree RA did not attend an IE scheduled for May 6, 2014 at 1:30 p.m.

Intact sent a letter dated May 23, 2014  to RA denying RA’s claim for benefits. It referred to the insurer’s previous letter and the fact that arrangements had been made for RA to attend several IEs including an IE on May 6, 2014 at 1:30 pm. The letter stated that as RA did not attend the IE’s, she was not entitled to the goods and services. Intact sent a second letter dated May 23, 2014 to RA. This letter refers to Intact’s previous letter of March 13, 2014 and indicated that arrangements had been made for RA’s participation in an IE scheduled for May 6, 2014 to assess her continued entitlement to ACB benefits. The letter indicated that Intact had received notice that RA did not attend the IE. Based on this and section 42(14) of the Schedule, Intact had determined that RA was no longer entitled to receive the ACB. The ACB was suspended effective May 6, 2014.

The letter of May 23, 2014 also stated that no benefit will be payable until RA participated in a re-scheduled IE. A final benefit cheque was issued for $896.38 to cover the ACB until May 6, 2014. She was advised that under section 42(15) that if she subsequently attended the re-scheduled IE, the insurer would reconsider her entitlement to the benefit. If she was entitled, they would resume payment. She was also provided the opportunity to provide a reasonable explanation for non-attendance. The letter included the 2-year limitation period warning.

POSITION OF THE PARTIES  

Pursuant to section 56 of the Schedule, an application in respect of an accident benefit has to be commenced within two years from the date of an insurer’s refusal to pay a benefit. The two year limitation period starts when an insurer provides an insured with a refusal to pay which is clear, unequivocal and advises RA of their dispute resolution options in straightforward and clear language.

Intact submits the refusal was clear and unequivocal. Intact provided reasons for Intact’s decision that RA was no longer entitled to the ACB in the letter of May 23, 2014. The language made it clear and RA would have known that she would not get any further ACB. The proper legal test for the commencement of the limitation period is a clear and unequivocal refusal of benefits by a respondent and reasons that allow an insured to challenge the refusal. Intact maintains it has done both. The letter of May 23, 2014 provided a valid and proper refusal to pay the ACB. It included straightforward and clear language. 

The May 23, 2014 letter also included  the relevant statutory references,  as  well  as  step-by-step  information  with  respect  to  the  procedure  for engaging in the dispute resolution process.  The respondent   submits  that  there  could  be  no  confusion  that Intact  was refusing to pay the ACB or why  it was refusing  to do so.  The “letter of denial” also included the warning about the two year limitation period. The letter provided RA with notice of rights to mediation, followed by litigation or a neutral evaluation and the letter included notice and warning about a two year limitation period.  Intact argues, the May 23, 2014 letter constitutes a proper refusal, which triggered the two year limitation period. 

RA claims she did not miss the two year limitation period because 1) the IE was never properly scheduled in the first place and 2) RA did not receive a clear and unequivocal denial of the ACB. RA maintains that the May 6, 2014 IE was to address medical benefits. It was not clear it was for ACB and as such the IE for ACB was not properly constituted. RA never actually missed attending the IE because it was never constituted properly. 

The Adjudicator reviewed the evidence and the law and determined that the IE was not properly constituted. There was not sufficient notice of the IE for an ACB as required under sections 42(3) and (4) and 44(5) of the Schedule.

• First, the NOE did not state the IE was to address the entitlement to the ACB. The NOE dated March 20, 2014 stated an IE was to address a claim for medical benefits for the amount of $5,698.39. Counsel acknowledged RA would attend an In Home Assessment on May 6, 2014 at 1:30 p.m. but no NOE was submitted into evidence stating that the examination was to assess an ACB.
• Second, the May 23, 2014 letter refers to the previous letter of March 13, 2014, but as mentioned above, no NOE was attached to the letter. Only one NOE was delivered to RA. I agree with RA that no notice, as required by sections 42(3) and (4) and 44(5), was provided that an IE was being scheduled to assess the ACB. As such, the IE for ACB was not properly constituted. Intact did not address this point in its submissions.

On this basis the denial was not clear and unequivocal and did not start the running of the limitation.  The two year time limit did not start because the refusal letter said payment would be reconsidered once the insured re-attended an IE.  Accordingly, RA is not statute barred from pursuing her claim for ongoing payment of the attendant care benefits. The claim for ACB can proceed to a hearing.

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