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?
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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”.
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