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Denial of Catastrophic Impairment designation included reference to benefits and started limitation period.

November 22, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Machaj v RBC General Insurance

 

Date of Decision: July 3,                2015

 

ONTARIO SUPERIOR COURT OF JUSTICE

 

In a recent case before the courts RBC Insurance moved for summary judgement on the basis that there was no issue for trial as the victim had not started the accident benefit mediation proceeding within the two year time limit set out in the Insurance Act.  

 

The accident victim submitted an Application for Determination of Catastrophic Impairment (CAT) to RBC dated January 6, 2009.  Based on several medical assessments commissioned by the defendant, the RBC responded by an Explanation of Benefits (OCF-9) dated May 25, 2009, “That the assessors have formed the consensus opinion that you have not sustained a catastrophic impairment and therefore you do not qualify for the increased benefits.”

 

The accident victim completed an Application for Mediation Form July 18, 2011.  This application did not indicate whether the claim involved catastrophic impairment but it did make reference to “catastrophic determination” under “Medical Benefits” #1.  Those words appear out of sync with that part of the form, and RBC claims that the filing for mediation is almost two months beyond the two year limitation period.

 

The Judge reviewed the law and concluded that the determination of the existence of a limitation period is not a convoluted exercise.  The jurist looks at the various forms and their dates and decides “yes” or “no”. The Judge recognized that limitation periods play an important role in the administration of justice by balancing individual right to justice against a systemic need for finality. The use of limitation periods encourages timely resolution of legal controversies and reconciles competing interests of claimants and defendants.

 

The Judge reviewed the accident victim’s contention that pursuant to a Divisional Court decision the limitation period does not run since a finding of no CAT impairment is not a determination with respect to the benefit.  Other cases were advanced which support the view that in the absence of a denial of a benefit the limitation period under the Insurance Act did not run.  The judge then noted that these cases were quite different to the refusal at hand as the refusal letter stated clearly “and therefore you do not qualify for the increased benefits.”

 

The Judge concluded that for these reasons the limitation period is applicable and accordingly there is no genuine issue for trial and the matter is therefore dismissed.

Posted under Accident Benefit News, Bicycle Accidents, Car Accidents, Catastrophic Injury, Fractures, Motorcycle Accidents

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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 toll-free at 1-866-414-4878.

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.

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