As a Minor the Limitation Clock Does Not Begin Running Until Applicant Is 18 - Applicant and Royal and Sun Alliance, 2018 CanLII 39449 (ON LAT 17-003732)

June 26, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Royal and Sun Alliance, 2018 CanLII 39449 (ON LAT 17-003732)

Date of Decision: March 16, 2018
Heard Before: Adjudicator Rebecca Hines

LIMITATION PERIOD and MIG and MEDICAL BENEFITS: applicant was minor at time of accident; limitation time period does not begin until applicant turns 18;

The applicant was injured in car accident on March 3, 2014.  She applied for accident benefits to Royal & Sun but when they denied her claim and she applied for dispute resolution to the LAT.

Issues:

1. Is the applicant precluded from proceeding with her claim for a non-earner benefit for non-compliance with the limitation period pursuant to s.56 of the Schedule?
2. If the answer is no, is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week, from December 19, 2014 to date and ongoing?
3. Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
4. If the answer is no, is the applicant entitled to payment for medical benefits for the following treatment plans recommended by Airport Rehab Centre:
   1. $1,998.00 for chiropractic treatment denied by Royal & Sun on June 16, 2015; and
   2. $3,054.80 for chiropractic treatment denied by Royal & Sun on December 19, 2014.
5. Is the applicant entitled to payment for a medical benefit and examination expense for the following treatment plans recommended by General Med M Inc.:
   1. $3,042.24 for psychological treatment denied by Royal & Sun on January 4, 2017; and
   2. $1,995.91 for a psychological assessment denied by Royal & Sun on June 15, 2015.
6. Is the applicant entitled to interest on any overdue payment of benefits?
7. Is the applicant entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice (“LAT’s Rules”)?
   1. Is Royal & Sun entitled to costs pursuant to LAT Rule 19?

Result:

1. The applicant is not precluded from proceeding with her claim for a non-earner benefit;
2. The applicant is not entitled to a non-earner benefit;
3. The applicant’s injuries are within the MIG;
4. Since the treatment plans exceed the MIG limit they are not reasonable or necessary; and
5. Neither party is entitled to costs.

On March 3, 2014, the 14-year-old applicant was in a car accident.  The applicant turned 18 on October 22, 2017.  On October 6, 2014, the applicant submitted an OCF-3 which supported entitlement to NEBs. The OCF-3 listed the following accident-related impairments:  injury of muscle and tendon of abdomen, lower back and pelvis; subluxation complex (vertebral) lumbar region.

On December 19, 2014 Royal & Sun sent an EOB denying her claim for a non-earner benefit. On June 14, 2017, the applicant filed an application with the Licence Appeal Tribunal disputing her entitlement to a non-earner benefit, which was approximately six months past the deadline for disputing the benefit.

Is the applicant exempt from the two year limitation period for disputing her entitlement to the non-earner benefit?

The Adjudicator determined that the applicant is exempt from the two year limitation period and is not precluded from proceeding with her claim for a non-earner benefit.

Section 56 of the Schedule requires that a mediation proceeding, evaluation, court proceeding, or arbitration shall be commenced within two years after the insurer’s refusal to pay a benefit or amount claimed. Royal & Sun argues that more than two years has passed since the denial of the benefit and the OCF-9 was a clear denial of the applicant’s entitlement to the non-earner benefit.

The applicant maintains that she is protected by s. 6 of the Limitations Act which suspends a limitation period when a claim involves a minor. She argues that the limitation period does not start to run until the she reaches the age of majority. The applicant relies on the decision of the Financial Services Commission of Ontario (“FSCO”) in Moran v. Economical as authority.

The Adjudicator determined that the applicant is not precluded from proceeding with her claim for a non-earner benefit as the Moran case submitted by the applicant is compelling.  The purpose of the Limitations Act is to protect minors who are not capable of making decisions and appreciating the consequences of their decisions.  An adult has the capacity to hire counsel and can do research on who they hire in order to ensure they have adequate representation. An adult can also give counsel instructions and grasp legal advice. A minor does not have such capacity.

The applicant has not met her onus in proving, on a balance of probabilities, that she is entitled to a non-earner benefit.

The applicant is not entitled to payment of a non-earner benefit for the following reasons.

1. The evidence submitted by the applicant with respect to her pre and post-accident activities insufficient and inconsistent.
2. Other than the disability certificate (“OCF-3”) dated October 3, 2014, no other medical records supported entitlement to the benefit. The only report submitted by the applicant was Dr. Ana Bodnar’s pre-screening psychological report dated November 5, 2015 and psychological assessment dated October 30, 2016. These assessments were conducted by Sarah Saeed, psychotherapist, under the supervision of Dr. Bodnar.

Do the applicant’s injuries fall within the MIG?

The Adjudicator found that on the basis of the evidence the applicant’s injuries fall within the MIG.

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.