Print

 

 Volume. 5 Issue. 41- September 15, 2021



In this week’s edition we review two limitation cases where the LAT considered the LAT Act with contrasting results. In the first case involving a claim for IRB the Tribunal found that a 2 year delay was irrelevant and in the second a NEB case the 9.5 month delay was determinative. What reasons did the Tribunal provide in support of their conclusions?

Advance your best case with for and against information. The investment is worth it! Submit your OAR request through Live Chat!

 



4 Years Post Denial Not Too Late

Filing Four Years Post Denial Unjustified… and Irrelevant – In the original decision of Li v Co-operators (20-002426), the Tribunal considered the applicability of s.7 of the LAT Act for both a chiropractic treatment plan as well as IRB entitlement, each brought two years past the expiry of limitation.

Dealing first with the treatment plan, the Tribunal held, “The two-year delay beyond the expiration of the limitation period is unjustified for a minor issue like this treatment plan… It would be unreasonable for the Respondent to be forced to defend the denial of a relatively minor issue in an untimely manner such as this.” However, upon considering the claim for IRB, the Tribunal took an entirely different approach, ultimately deciding it appropriate to invoke the LAT Act to allow the IRB claim to proceed.

The Respondent had written to the Applicant May 12, 2016, to advise entitlement to IRB would stop May 27, 2016. Subsequently, Li filed with the Tribunal March 2, 2020, almost four years following the initial denial. Li had in fact not been actually receiving IRB, as she was covered by an LTD policy, with that entitlement being denied March 1, 2018. This was around the time when the AB file was securing CAT assessments.

Merits of the Case
The Tribunal found that the “claim has merit in that she suffers from significant psychological injuries which prompted her to apply for a determination of catastrophic impairment. The prejudice to the Respondent is mostly mitigated because it conducted IEs and based its decision to deny IRBs on the subsequent reports.”

Length of Delay
The Tribunal then went on to postulate that “The length of delay is either non-existent or significant, depending on the perspective of the party.” Li “sees no delay because the Application was made on March 2, 2020 and, to her, IRBs were truly stopped on March 1, 2018 when her extended health carrier stopped paying temporary disability benefits. Alternatively, the Applicant submits her Application was made about 14 months after her condition deteriorated and she discovered her claim.”

Prejudice to the Other Party
The Tribunal reasoned that “while I agree that the length of delay is substantial, I give this factor little weight in my analysis considering the Applicant’s psychological health at the time of the accident and thereafter… the length of delay is partly mitigated because the Respondent conducted catastrophic impairment assessments throughout the period of delay.”

Bona Intention to Appeal within Limitation
Finally, with the Tribunal filing being exactly two years following the LTD denial, “the timing suggests that she intended to appeal within the two-year limitation period and legitimately believed she was appealing within the limitation period.”



OCF3 Not Required for NEB Application

OCF3 Not Required for NEB Application – In Robertson v Coseco (20-004779), the Respondent submitted that it clearly and unequivocally denied Robertson’s NEB claim on June 28, 2017. Following receipt of a requested OCF3 that endorsed NEB entitlement, the Respondent issued a second denial March 15, 2018 referencing the first denial letter, and maintained its position that Robertson was not entitled to a NEB.

Robertson contended that the initial denial “could not have triggered the limitation period because she never intended to apply for a NEB in 2017, as alleged. She submits that she did not apply for the benefit until she submitted her February 28, 2018 OCF-3 supporting entitlement to the NEB.” The Tribunal was “alive to the applicant’s submission that she had not yet submitted her OCF-3 and therefore had not applied for a NEB”, however found that the initial denial “constitutes a clear refusal to pay a benefit.”

Robertson “asserts that on May 4, 2017 she advised Coseco’s adjuster that she did not intend to claim NEB and that she did not actually apply for same pursuant to s. 36 until she submitted her OCF-3 on March 3, 2018 which supported her entitlement to NEB.” However, the Tribunal noted that “the applicant’s interpretation of s. 36 fails to appreciate that s. 36 does not provide that an application is incomplete without an OCF-3. There is nothing in s. 36 that speaks to intent.” Further, “Section 36 does not state that Coseco is precluded from denying a specified benefit claim prior to receipt of an OCF-3, and especially so where the applicant indicated that she would not be claiming the NEB, where her OCF-1 did not indicate that she met the test, and where she failed to submit medical documentation to support her claim.”

In addition, the Tribunal agreed with the Respondent that Robertson’s position was “contrary to the Court of Appeal’s decision in Sagan v. Dominion, 2014 ONCA 720, where it held that the commencement of a limitation period is not contingent on the submission of an OCF-3.”

The Tribunal considered and dismissed a number of submissions regarding whether the LAT Act ought to be invoked to extend the limitation period. In contrast to the decision above, in this matter the Tribunal found that “the 9.5-month delay is quite significant. This is not a matter of missing a limitation period by a few business days or weeks. Indeed, the applicant’s entitlement to the NEB elapsed over one year before she even initiated her application with the Tribunal, which dovetails with the prejudice that Coseco would face in not being able to schedule contemporaneous s. 44 examinations”.



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

April 30, 2025: Tribunal Confirms Four Class 4 Marked Impairments

CAT

April 28, 2025: MIG Not Conceded Despite Approved CAT Assessments

MIG

April 23, 2025: Court Reverses Tribunal’s Unreasonable Adjournment Refusal

Adjournment, CAT, Divisional Court

April 21, 2025: MIG Escape on Fractured Tooth 15 Months Later

MIG

April 16, 2025: Deficient Notice Renders NEB Payable

NEB

April 14, 2025: MIG Valid Medical Reason

MIG

April 9, 2025: Bus Travelling Over Elevated Manhole Cover Satisfies “Collision”

Definition Accident

April 7, 2025: Four OCF 18’s Payable Despite MIG Hold

MIG

March 26, 2025: Post 104 IRB Ongoing for Non-CAT

CAT, IRB

March 24, 2025: 30% Award for Failure to Review CNRs Overturned on Reconsideration

MIG

March 19, 2025: Yes to CAT, No to Post 104 IRB

CAT, IRB

March 17, 2025: Imaging Report Alone Insufficient to Establish Causation

MIG

March 12, 2025: Tribunal Rules Again on Matter Referred Back by the Court

Definition Accident, Divisional Court

March 10, 2025: Res Judicata Waived on New Evidence

MIG

March 5, 2025: No Criterion 8 CAT as Physical Pain the Limiting Factor

CAT

March 3, 2025: Cause of Shoulder Tear Degenerative or MVA Related?

MIG

February 26, 2025: NEB Payable to 104 Week Mark Due to Technical Breaches

NEB

February 24, 2025: Doctor Not Required to Provide Diagnosis

MIG

February 19, 2025: Court Sets Aside Tribunal S.32 Notice Decision

Breaking News, Div Court, Limitation Period

February 12, 2025: Post 104 IRB Despite Employment & No CAT As Only Two Marked Impairments

CAT, IRB

February 10, 2025: GP Evidence Preferred over IE Regarding Concussion

MIG

February 5, 2025: No Election Required Despite Endorsement of IRB & NEB

Procedure, SABS

January 27, 2025: CNR’s + Imaging Determinative of Complete Shoulder Tear

MIG

January 22, 2025: Court of Appeal Upholds Divisional Court Decision

Divisional Court, NEB, Reconsideration

January 20, 2025: GP’s Diagnosis of “Head Injury” Prevails

MIG

January 15, 2025: Tribunal Accepts Neither Expert in Awarding Pre But Not Post 104 IRB

IRB

January 13, 2025: A Brain Contusion is Not Enough for a Concussion Diagnosis

MIG

January 9, 2025: Court Awards $69K in Costs for Apparent Miscarriage of Justice

Divisional Court,Costs

January 6, 2025: Corroborative Evidence Not Necessarily Required in Psych Diagnoses

MIG

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG