Applicant statute barred from applying for NEBs - WCC and Allstate 2018 CanLII 39453 (ON LAT 17-001363)

June 19, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

WCC and Allstate 2018 CanLII 39453 (ON LAT 17-001363)

Date:     2018-03-12
Heard Before: Adjudicator Meray Daoud

NEB LIMITATION and BENEFITS: applicant files application late and is barred from applying for NEBs; Applicant has not shown that treatment plans are reasonable and necessary

WCC was involved in a car accident on May 3, 2013, and sought benefits from Allstate pursuant to the SABs, but when WCC’s claim for statutory accident benefits was denied he filed an application with LAT to resolve the matter.

Issues in Dispute:

1. Is WCC entitled to a NEBs in the amount of $185.00 per week from May 3, 2013 to May 3, 2015, denied by Allstate on May 22, 2013?
2. Is WCC entitled to payment for physiotherapy services as follows:
3. $1,247.34 as set out in a treatment plan dated November 18, 2016?
4. $948.10 as set out in a treatment plan dated February 7, 2017?

Result:

1. WCC is statute barred from disputing the denial of the NEBs.
2. WCC has not met his onus of establishing, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary. As such, WCC is not entitled to the treatment plans in dispute.
3. Allstate is not entitled to its costs for this proceeding.

ANALYSIS:

WCC is seeking NEBss at $185.00 per week from May 3, 2013 to May 5, 2015.  The NEBs was denied by Allstate in an OCF-9 dated May 22, 2013. The application to the Tribunal disputing this denial is dated March 7, 2017.  Allstate brought forth a limitation defence with respect to the NEBs issue. Allstate claimed that, under s. 56(1) of the Schedule, WCC had two years to dispute this denial, and this had run as of May 22, 2015.

S. 7 of the Licence Appeal Tribunal Act allows the Tribunal to extend a limitation period if there are reasonable grounds to do so.  WCC submits that the limitation period for this benefit should be extended for multiple reasons. 

The first argument which WCC put forth is that the limitation period should be extended because the delay was caused by Allstate.  WCC submits that he retained representation on December 16, 2013, and two request letters (dated December 18, 2013 and February 17, 2015) were sent to Allstate requesting the complete accident benefits file. WCC states that no correspondence was received from Allstate until receipt of the AB file on May 27, 2015, five days after the limitation period on the NEBs denial had run. WCC argues that Allstate knew or should have known that WCC is a senior and has a limited English comprehension. WCC submits that Allstate intentionally or negligently ignored the requests and sent the AB file after the limitation period was up, ultimately harming WCC’s right to seek legal advice.

The Adjudicator disagreed with WCC’s argument and noted that a limitation period is not impacted by the lack of receipt of an AB file by an applicant’s representative. Once an insurer denies a benefit, the limitation period begins to run from that date. The Adjudicator also noted that the application to the Tribunal for the denial of the NEBs was made over 21 months after receiving the denial in the AB file. No explanation was given for the delay.

The second argument presented by WCC is that Allstate prematurely and improperly denied the NEBs before WCC was legally entitled to the benefit. WCC states if there was no legal entitlement, there could be no denial.

The Adjudicator disagreed noting that Section 12(4)(a) of the Schedule states that an insurer is not required to pay a NEBs for the first 26 weeks after the onset of the complete inability to carry on a normal life. The 26 week waiting period to receive a NEBs is not in reference to entitlement, rather, it is in reference to when the NEBs is payable. This can be considered a “deductible” period.

Finally, WCC argues that Allstate did not clearly deny the specified benefit, claiming it was a “blanket denial”. Further, WCC argues that Allstate provided inadequate notice to WCC about the denial and his right to dispute. WCC submits he does not recall receiving the form or any cover letter.

Allstate had an opportunity to reply to this argument submitting that the NEB was denied in an explanation of benefits dated May 22, 2013, and was in the form required by the Regulation as approved by the superintendent. Allstate also submits that the denial was specific and set out WCC’s right to dispute the denial, clearly stating the two year limitation.

Allstate further submits that it was mailed to WCC at the address listed on his Application for Accident Benefits as well as the Disability certificate, both dated May 8, 2013. Allstate clearly raised the limitation defence to the NEBs dispute within its initial response submissions. WCC had ample time to enter reply submissions to the Tribunal, presenting their response to this defence, but did not take this opportunity. Rather, it was only when prompted, by way of letter from the Tribunal specifically requesting reply submissions addressing the limitation defence, that the Tribunal received same from WCC.

The Adjudicator was troubled by the fact that WCC did not raise the issue of possibly not receiving such an important document in this case until they were urged to put in a reply addressing the issue. This is the first time this argument was raised. I would expect that such a vital piece of information would be raised immediately by WCC in response to the limitation defence—if not years earlier—when first receiving a copy of it in the AB file, not as an afterthought.

The Adjudicator had no reason to doubt the credibility of Allstate. The OCF-9 was provided in evidence for this hearing. A cover letter is not required when sending out a denial to an insured person, and the absence of a cover letter does not suggest the letter was never mailed to WCC.  On a balance of probabilities the Adjudicator found that the OCF-9 dated May 22, 2013 was mailed to WCC at his last known address.  With respect to the properness of the denial itself, the Court of Appeal decision in Sietzema, held that an insurer’s denial of a benefit, even if it is legally incorrect, will trigger the two-year time limitation. If WCC believes that the denial was improper, they had a right to dispute whether it was proper or not within the two year period. 

As a result of the above, the two year limitation period on the denial of the NEBs began to run on May 22, 2013 and was up on May 22, 2015. As such, WCC is statute barred from disputing the NEBs denial.

Medical Benefits:

The Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. WCC bears the onus of proving on a balance of probabilities that the proposed treatment plans are reasonable and necessary.

The treatment plans in dispute, dated November 18, 2016 and February 7, 2017 both list WCC’s injuries , and propose funding for physical therapy for multiple body sites, as well as a total body assessment (examination).  Both treatment plans also note that the goals of treatment are pain reduction, to increase strength and range of motion as well as to increase endurance and minimize risks of chronicity so that WCC can return to his activities of normal living.

WCC submits that he continues to suffer from significant loss of range of motion and difficulty with his right upper extremity, chronic pain in his chest wall and chronic myofascial pain in his cervical and lumbosacral spine.  He included a brief of medical records with his submissions, which were reviewed and considered in coming to this decision.

Allstate’s Orthopedic Assessment Report concludes that while WCC has not yet reached maximal recovery, he has achieved maximum therapeutic benefit from facility-based treatment and that he should continue with his self-directed home exercise program. It found that the treatment plan dated November 18, 2016 was not reasonable and necessary. Allstate denied the treatment plan dated February 7, 2017 based on the findings of this report, that is, the treatment plan was not reasonable and necessary.

WCC did not submit enough evidence to support her entitlement to the treatment plans in dispute. WCC has not adduced sufficient medical evidence to show what her condition was at the time these treatment plans were proposed, other than the treatment plans themselves and the briefs notes. The proposed treatment plan provides some support for further treatment however it is simply not sufficient. Objective medical evidence substantiating the reasonableness and necessity of a proposed treatment plan must also be present. WCC has submitted such evidence.

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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.