Insurer Misses Broken Bones in Adjusting Claim - Applicant is Removed from MIG - PM v RBC LAT 16-001611

January 21, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

PM v RBC LAT 16-001611  2017 CanLII 85689 (ON LAT)

Decision Date:   December 8, 2017
Heard Before:  Adjudicator Ruth Gottfried

LIMITATION AND ENTITLEMNT TO BENEFITS: applicant did not provide any submissions to explain why it took approximately five months from the denial of EI benefits to the application for accident benefits; applicant makes case for IRBs;

On July 31, 2014 P.M. was the front seat passenger in a car, when it was in a collision.  He suffered various injuries and applied for and received IRBs as well as medical and rehabilitation benefits the SABs.  RBC approved benefits for P.M. until the expenditure reached the maximum of $3,500 allowable under the MIG. RBC denied further treatment plans.  At the time of the accident, P.M. was a recent immigrant to Canada and spoke no English. His eldest son acted on his father’s behalf whenever necessary. Because the daughter was deemed at fault, P.M. was under the impression that he would not be covered by insurance for accident benefits, so he applied to Service Canada for EI.  The process eventually took several months, including an appeal, before a final denial of EI benefits.

When he eventually applied for accident benefits through RBC, the fracture injury he had sustained in the accident was missed and his claim was adjusted as though he was under the MIG.

ISSUES:

1. Is P.M. entitled to IRBs in the amount of $400 per week, for the period of August 7, 2014 to date and ongoing?
2. Has P.M. sustained a minor injury as defined under the Schedule as a result of the accident?
3. Is P.M. entitled to a medical benefit in the amount of $2,609.72 plus tax for a total amount of $2,659.01 in an OCF-18 dated March 27, 2015?
4. Is P.M. entitled to a medical benefit recommended in the amount of $1,560.86 plus tax for a total amount of $1,591.12, in an OCF-18 dated April 5, 2016?
5. Is P.M. entitled to a medical benefit recommended by in the amount of $2,354.10 plus tax for a total amount of $2,399.46, in an OCF-18 dated June 4, 2015?
6. Is P.M. entitled to a medical benefit recommended by in the amount of $2,070.29 plus tax for a total amount of $2,108.11, in an OCF-18 dated August 11, 2015?
7. Is P.M. entitled to a medical benefit recommended in the amount of $1,786.48 plus tax for a total of $1,816.74 in an OCF-18 dated November 17, 2015?
8. Is P.M. entitled to a cost of orthopaedic assessment recommended for a total amount of $$2,460.00 in an OCF-18 dated March 22, 2016?
9. Is P.M. entitled to a $200.00 completion fee for an OCF-18 dated March 22, 2016?
10. Is P.M. entitled to a $200.00 completion fee for an OCF-18 dated April 5, 2016?

RESULT:

1. On the preliminary issue, P.M. is not disentitled to accident benefits by reason of his failure to apply for benefits within the prescribed time limits.
2. P.M. is entitled to IRBs in the amount of $400.00 weekly from March 27, 2015 to July 30, 2016, plus interest.
3. P.M. is not entitled to IRBs in the post-104 week period after July 31, 2016.
4. P.M. was removed from the MIG by RBC in August 2015.
5. P.M. is not entitled to the following medical benefits as they were not submitted in dispute:
   1. $2,659.01 – OCF-18 dated March 27, 2015
   2. $1,560.86 – OCF-18 dated April 5, 2016
6. P.M. is entitled to the following medical benefits plus interest where applicable:
   1. $676.86 ($2,399.46 – less $1,722.60 already approved) OCF-18 dated June 4, 2015
   2. $1,816.74 – OCF-18 dated November 17, 2015
   3. $2,460.00 + HST – orthopaedic assessment dated March 22, 2016
7. P.M. is not entitled to a $200.00 completion fee for OCF-18 dated March 22, 2016.
8. P.M. is not entitled to a $200.00 completion fee for OCF-18 dated April 5, 2016.

PRELIMINARY ISSUE:

RBC raised a preliminary issue as to whether P.M. is disentitled to accident benefits by reason of his failure to apply for benefits within the time limit imposed by section 32(1) or, pursuant to section 34 of the Schedule to provide a reasonable explanation?  RBC’s position is that it had no notice of the accident until March 20, 2015, when it received P.M.’s application for benefits.  The application was filed almost 8 months after the accident.

P.M.’s position is that RBC was notified of the accident by P.M.’s son shortly after the accident.  P.M. claims that at that time, RBC denied third party coverage as P.M.’s daughter, the driver, was at fault.  P.M. claimed that he was unfamiliar with the auto insurance claims process, and therefore believed he had to apply to Service Canada for employment insurance payments, rather than to RBC for accident benefits.  He applied to Service Canada; was denied and appealed.  His appeal was also denied.

RBC refers to the correct statute governing the time frame within which an applicant must give the insurer notice if they intend to make a claim for accident benefits.  The Schedule states in section 32(1) that a person shall notify the insurer no later than the seventh day after the accident, or as soon as practicable after that day.  However, once P.M. has provided notice, the burden shifts to the insurer to “promptly provide” all the necessary information and documentation to enable P.M. to file a claim.

If P.M. does not comply within the stated period, section 34 provides a redemptive clause for P.M..  Section 34 effectively states that if there is a reasonable explanation for the failure to comply with a time limit, an applicant is not disentitled to the benefit claimed. P.M. stated that his son called RBC to advise them of the accident.  RBC submits that there is nothing in the adjuster’s log notes to indicate a communication was received.

There is no evidence before, other than the statement of P.M. that the son made a phone call to RBC and was given the information that it was not going to provide accident benefits coverage.  Clearly, if there was a telephone call it did not generate a log note in the adjuster’s file or a package of accident benefit forms being sent to P.M..  The evidence from RBC is that the forms were sent out by letter a few days after the application actually was received.

P.M. states that the application to Service Canada, their denial, his appeal and their subsequent final denial was the cause of the delay in applying for accident benefits.  There is no evidence before me as to when the application to Service Canada was made – only the denial dates of September 17, 2014 and October 23, 2014. P.M. also offers evidence that he requested information from his employer and a doctor’s note confirming ill health, at Service Canada’s request.  The family doctor’s Sickness Certificate was dated August 1, 2014 and P.M. emailed his employer on August 6, 2014 requesting an ROE.   Considering the dates of these documents, it seems on a balance of probability that the initial request to Service Canada for employment insurance was made shortly after the accident.  The final denial came from Service Canada on October 23, 2014.  There is no evidence from either party as to why there was a delay in submitting an application for benefits from October 2014 to March 2015.

The Arbitrator examined the three tests of reasonableness for an explanation proposed by FSCO Arbitrator Leitch in the Horvath case.

1. Balancing of prejudice to the insurer
2. Hardship to P.M.
3. Whether it is equitable to relieve against the consequences of the failure to comply with the time limit

Upon review of the facts the Arbitrator determined that P.M.’s explanation for the delay in submitting his application for benefits is reasonable given all of the circumstances, and that it would be inequitable to prevent P.M. from a fair hearing of the issues in dispute.

Is P.M. entitled to IRBs in the amount of $400 per week, for the period of August 7, 2014 to date and ongoing?

To date, P.M. has not received any IRBs.  P.M. bears the burden of proving on a balance of probabilities that he is entitled to this benefit. RBC’s position for not paying IRBs is twofold.  First, it submits that subject to section 36(3), as P.M. did not submit a completed disability certificate until March 27, 2015, he is not entitled to IRBs for any period prior to the submission. Second, P.M. does not meet either the substantial or complete inability test.

P.M.’s position is that he has submitted a reasonable explanation for the delay in submitting his claim to RBC and therefore RBC is responsible for the payment of IRBs effective August 7, 2015.  The reasonable explanation for delay that P.M. submitted is that his son advised RBC of the accident shortly after it occurred, he was employed prior to the accident, he did not quit his employment prior to the accident, and he suffered injuries in the accident

The Arbitrator accepted P.M.’s explanation for delay in submitting the initial application for accident benefits, and found his explanation reasonable enough so that he would not be disentitled completely from applying for benefits.  However, P.M. did not provide any submissions to explain why it took approximately five months from the denial of EI benefits to the application for accident benefits to RBC, On this basis P.M. is not entitled to IRBs before the submission of the disability certificate on March 27, 2015.

The Arbitrator reviewed the substantial medical evidence and concluded that P.M. suffered a substantial inability to perform an essential task of his pre-accident employment, and. is therefore entitled to IRBs in the amount of $400.00 per week from March 27, 2015 to July 30, 2016 – the end of the first 104 weeks. This benefit is overdue and therefore interest has accrued subject to the terms set out in section 51 of the Schedule.

The Arbitrator ruled that based on the evidence the applicant has not met the test for post 104 week IRBs, and is not eligible to receive post 104 IRBs.

In its submissions, RBC confirmed that P.M. has been taken out of the MIG as per the addendum report dated August 31, 2015.  Additionally, RBC recognizes that the fracture that P.M. suffered is not considered a “minor” injury. Because P.M. is no longer subject to the MIG, RBC states in its submissions that it has agreed to pay for medical benefits that it initially denied for that reason.

Medical and Rehabilitation Benefits

RBC and its assessors and adjusters somehow missed the diagnosis of a fracture of P.M.’s small left finger.  RBC continued to adjust the file as though P.M. was still under the Guideline.  It is only in their submissions for this hearing that RBC has resiled from its initial adjustment of this application.

The Arbitrator noted she had great difficulty in determining what medical rehabilitation benefits are in dispute.  Those listed in the application are not those proposed by RBC and neither completely match the copies of the OCF-18s included with P.M.’s submissions. Because of this the Arbitrator listed those claims that both parties addressed and made decisions based on whether they were reasonable and necessary.

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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.