Applicant statute barred from applying for benefits as more than two years elapsed since accident - Applicant and Unifund, 2018 CanLII 13170 ON LAT 17-000982

May 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant statute barred from applying for benefits as more than two years elapsed since accident - Applicant and Unifund, 2018 CanLII 13170 ON LAT 17-000982

Date of Decision: February 1, 2018
Heard Before: Adjudicator Gemma Harmison

NEBs and MIG: applicant must apply for the benefits requested within two years of accident; applicant fails to do so.

The applicant was in a car accident on January 13, 2011. He was a passenger in a vehicle driven by his friend when their vehicle collided with another vehicle. The applicant took a bus home after the accident. He did not require immediate medical treatment.  He saw his family doctor eight days later. He also attended physical treatment sessions at a clinic because he reported experiencing pain including in the areas of his neck, back, chest and extremities.

As a result of the accident he applied for benefits pursuant to the SABs in 2017. Unifund funded treatment for up to the MIG treatment cap but it denied other benefits for which he had applied. The applicant applied to the LAT disputing Unifund’s denial of NEBs and denial of four treatment plans.

Unifund’s position is that the applicant is time-barred from proceeding with his claim for NEBs at the Tribunal because he did not bring his dispute for NEBs within 2 years of its refusal to pay those benefits.  In the alternative, Unifund submits that the evidence does not support a finding that the applicant suffers a complete inability to carry on a normal life as a result of the accident, as would be required for him to be eligible for NEBs.  With respect to the four disputed treatment plans, Unifund maintains its position that the applicant’s accident-related injuries are predominantly minor and subject to the MIG treatment cap of $3,500, and since Unifund has already paid medical benefits for the applicant up to the $3,500 MIG cap, he is not entitled to any further payment for medical benefits.  The applicant contends that his injuries are not minor and therefore he should not be confined to the MIG treatment cap of $3,500.

Issues

1. Is the applicant barred per section 56(1) of the Schedule from proceeding with his claim for NEBs at the Tribunal because he did not bring his dispute for NEBs within 2 years of Unifund’s refusal to pay that benefit?
2. If the answer to issue (a) above is no, is the applicant entitled to NEBs in the amount of $185.00 per week for the period of July 14, 2011[1] to date and ongoing?
3. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500.00 and to treatment within the MIG?
4. If the answer to issue (c) above is no, is the applicant entitled to medical and rehabilitation benefits recommended in the following Treatment and Assessment Plans (OCF-18s) that were denied by Unifund:
   1. OCF-18 in the amount of $1,995.00 for the cost of examination for a psychological assessment, submitted on October 19, 2015?
   2. OCF-18 in the amount of $2,465.32 for psychological treatment, submitted on January 7, 2016?
   3. OCF-18 in the amount of $1,995.00 for medical services, submitted on March 21, 2016?
   4. OCF-18 completed by Dynamic Health and Sports Injury Clinic in the amount of $1,871.76 for medical services, submitted on May 26, 2016?
5. Is Unifund entitled to costs under Rule 19.1 of the Tribunal’s Rules?

RESULT:

1. The applicant did not bring his dispute for NEBs within 2 years of Unifund’s refusal to pay that benefit and, as a result, he is time-barred from proceeding with his claim for NEBs at the Tribunal. Since the applicant is time-barred from proceeding with his claim for NEBs, there is no entitlement to NEBs and his claim for NEBs is dismissed.

1. The applicant has failed to prove that his injuries are not predominantly minor. Since the applicant has not proven his injuries fall outside of the MIG, and since he has already exhausted the MIG treatment cap of $3,500, he is not entitled to payment for any of the disputed treatment plans.

1. Unifund is not entitled to costs under Rule 19.1.

Per section 56(1) of the Schedule, an insured person must dispute the denied benefit within 2 years of Unifund’s refusal to pay the benefit.   In its evidence for the hearing, Unifund submitted a copy of correspondence it sent to the applicant informing him that it had denied his claim for NEBs. That correspondence is dated July 11, 2011. The Adjudicator was satisfied having reviewed that correspondence that Unifund’s denial was clear and unequivocal.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.