TD was not clear in its refusal of IRBs - Limitation clock has not begun to run - OA v TD General Insurance Company LAT 16-003897

December 02, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

OA v TD General Insurance Company, LAT 16-003897  2017 CanLII 69447 (ON LAT)

Decision Date: October 4, 2017
Heard Before:  Adjudicator Deborah Neilson

CAN INSURED PROCEED WITH CLAIM: Insurer fails to provide clear refusal of IRB benefits; two-year limitation clock does not begin to run; insured fails to indicated which part of disablilty claim form is incomplete;

OA was injured in an car accident on August 25, 2014, and sought IRB benefits from TD. TD has not paid any IRBs to OA, claiming she failed to submit a disability certificate (OCF-3) that supports any entitlement to IRBs. When mediation failed OA applied to the LAT for Arbitration.

This order addresses a preliminary motion brought by TD seeking to dismiss the application without a hearing on the basis that OA is precluded from proceeding with her claim for IRBs because she missed a two-year limitation period, and failed to provide TD with a completed disability certificate that supports any entitlement to IRBs.

Issues:

1. Is OA is precluded from proceeding with her claim before the Tribunal pursuant to s. 56 of the Schedule because she failed to apply to the Tribunal within the two year limitation period from the date of TD’s refusal to pay IRBs;
2. Is OA’s claim for IRBs ought to be dismissed pursuant to s. 36(3) of the Schedule because she failed to submit a completed disability certificate pursuant to the procedural requirement in s.36(2) of the Schedule;
3. Is OA’s claim to be dismissed because she failed to submit a disability certificate that provides substantive support for any entitlement to IRBs; and
4. Is TD is entitled to withhold IRBs under s. 33(6) of the Schedule on the basis OA failed to comply with her obligation under s. 33(1) of the Schedule to provide TD with information reasonably required to assist the insurer in determining OA’s entitlement to IRBs.

RESULT

1. TD’s motion is dismissed, and OA may proceed with her claim before the Tribunal.

BACKGROUND

TD received a disability certificate (OCF-3) dated September 18, 2014 prepared by aphysiotherapist (the “first disability certificate”) who reported in the disability certificate that OA was not substantially unable to perform the essential tasks of her employment, she could return to work on modified hours or duties and she was able to work, but that she was on maternity leave.

The physiotherapist also noted OA had a substantial inability to perform her pre-accident housekeeping and home maintenance services. He diagnosed OA with a level three whiplash associated disorder and muscle strain of multiple sites. He stated that the date the symptoms first appeared was August 25, 2014, but he left blank the dates of the most recent examination and the first post-accident examination of OA.

OA submitted an application for accident benefits (OCF-1) dated October 6, 2014 to TD that was, according to the date stamp, received by TD on October 29, 2014.  OA was employed at the time of the accident, but was on maternity leave.  On part 8 of the application where OA was asked if her injuries prevent her from working, she did not answer “yes” or “no” or indicate a date from when her injuries prevented her from working, but wrote “maternity leave.” She had been on maternity leave at least since the birth of her youngest child on May 21, 2014.  She expected to return to work at the end of her maternity leave on May 21, 2015.

On October 31, 2014, TD sent a letter to OA advising her that she was eligible for medical and rehabilitation benefits, IRBs were mentioned only with respect to TD’s indication that it “…will require a completed OCF3 Disability Certificate in order to determine your eligibility to the IRB.  Your health care provider can complete this form for you.”  No explanation was provided about any consequences of OA’s failure to provide a completed disability certificate.

On March 15, 2016, TD received a letter from OA’s lawyer asking for a copy of OA’s accident benefit file and, among other things, for IRBs to be paid.  A direction confirming the lawyer had authorisation to obtain a copy of OA’s accident benefit file was not provided to TD until October 18, 2016.  OA made a few more requests directly to TD for the file and as of March 6, 2017, TD still had not produced a copy of the non-privileged portion of its accident benefit file to OA.

TD wrote to OA on April 20, 2016, advising her that TD had an OCF-2 Employer’s Confirmation form, but that no disability certificate had been received to date. TD asked OA to have her health care provider submit a completed disability certificate if she was off work as a result of her accident. TD also provided OA with an enclosure titled “Applicant’s Right to Dispute” that explained that OA could file an application with the Tribunal within two years of a decision denying or reducing benefits.

TD received another disability certificate prepared by OA’s family physician, Dr. Catherine George, dated June 2, 2016 (the “second disability certificate”).  Dr. George left the “yes” and “no” boxes blank in part 6 of the second disability certificate, which indicate whether OA is substantially unable to perform the essential tasks of her employment or whether she can return to modified duties.  Instead, Dr. George wrote “on maternity leave since [sic] of accident & has not returned to work. Doing housework with assistance or not at all.”  Dr. George ticked off the box indicating OA has a complete inability to engage in a normal life, but did not state the anticipated duration of her disability.

TD received a further disability certificate prepared by Dr. George, dated November 23, 2016 (the “third disability certificate”).  Dr. George indicated on part 6 of the third disability certificate that the questions about OA’s ability to work were not applicable as she was on maternity leave at the time of the accident. TD wrote to OA on November 29, 2016, advising that the second disability certificate by Dr. George was incomplete as part 6 dealing with OA’s ability to work was left blank. TD noted that the third disability certificate indicates that OA was on an extended leave and returned to work in November 2016.  TD advised that it was, at that time, unable to determine OA’s eligibility for IRBs and asked that OA submit an Employer's confirmation form (OCF-2), her Employment Insurance records and statements of any post-accident income in order to properly calculate her IRBs. 

On December 8, 2016, TD again wrote to OA seeking an updated disability certificate by December 28, 2016 with section 6 completed by having the practitioner fill in either “yes” or “no” with respect to the benefit OA was eligible for.   OA was advised that the request was made pursuant to s. 33 of the Schedule.  No explanation was provided about s. 33 or the consequences of failure to provide a completed disability certificate.

TD has asked that paragraphs in OA’s submissions quoting from a report prepared at OA’s by a physiatrist, dated September 26, 2016, be struck along with the report because they deal with the substantive issue of entitlement to IRBs.  However, TD is the one who first raised the issue of substantive entitlement.  At paragraph 16 of its written submissions, TD submitted that OA’s claim should be dismissed because none of OA’s disability certificates indicate that OA is entitled to IRBs.  The Arbitrator did not strike the report or the paragraphs of OA’s submissions relating to the report on an issue that respondent itself first raised in its submissions, however the Arbitrator gave it little weight. 

The Arbitrator reviewed the evidence and the law and noted that the limitation period for bringing a dispute related to accident benefits is set out in s. 56 of the Schedule which requires that an application in respect of a benefit shall be commenced within two years after the insurer's refusal to pay the amount claimed.  The Arbitrator agreed with TD’s submission that a clear and unequivocal denial is all that is required to start the clock. Before determining whether OA is barred from proceeding with her application based on the expiry of the limitation period, the Arbitrator had to determine whether there was a refusal by TD to pay OA’s claim for IRBs and, if so, whether it was clear and unequivocal.

The Arbitrator determined that that there has not been a clear or unequivocal refusal by TD to pay OA IRBs and, accordingly, the limitation period has not yet started.

The Arbitrator disagreed that TD’s letter of  October 31, 2014 letter was a refusal.  If it was meant to be a refusal, it was not a clear or unequivocal denial because at no point is OA advised that IRBs are not payable or that she is not eligible for the benefit. Rather, the letter indicates that the insurer will consider payment of IRBs upon receipt of the disability certificate, which is to be contrasted with the notice to OA that she was “not eligible for” non-earner benefits and caregiver benefits along with the reasons for why TD determined she was not eligible for those benefits. TD was clearly refusing to pay non-earner and caregiver benefits. If TD had meant to refuse payment of IRBs, it would have stated so.

On this basis there has been no clear and unequivocal refusal to pay IRBs, no limitation period has begun. OA is, therefore, not prohibited from proceeding with her claim for IRBs due to a limitation period.

Regrading the completed disability certificate The Arbitrator noted that TD relies on s. 36(2) of the Schedule, which requires that an applicant who applies for a specified benefit, which includes an IRB, to submit a completed disability certificate with her application under s. 32 of the Schedule.  TD also relies on s. 36(3) of the Schedule, which states that an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.  TD claims that none of the three disability certificates submitted by OA were “completed” disability certificates as contemplated by s. 36 of the Schedule.

The Arbitrator noted that at no point has TD indicated which part of the first disability certificate it claims is incomplete.  It appears that because the certificate indicates OA would be able to work, but for being on maternity leave, that TD claims the certificate is incomplete. TD submits that without a disability certificate that states OA meets the disability test for the specified benefit in dispute, OA has not submitted a “completed disability certificate” as required by s. 36(2) of the Schedule and should be precluded from applying to the Tribunal for dispute resolution.  No other deficiency in the disability certificates is noted by TD in its submissions.

The procedure for applying for an IRB is set out in s. 36 of the Schedule.  Section 36(3) requires an applicant to submit a completed disability certificate with her application under s. 32 of the Schedule. Since the disability certificate and the application are to be submitted together, the Arbitrator ond the Legislature must have intended for them to be read together.  If the information missing from one document is found in the other, to require strict compliance with the completion of the disability certificate, despite the information being available to the insurer, without further explanation or reason is a harsh consequence that 36(3) was not meant to impose.

OA did not fill in the section asking for the last day she worked or whether she was a caregiver on the first disability certificate or on the other two disability certificates.  That information is available from the Application for Accident Benefits (OCF-1). OA listed on her application that she was a primary caregiver and that she was on maternity leave and in receipt of Employment Insurance benefits from May 21, 2014 to May 21, 2015.  The Arbitrator noted the last day OA worked would have been listed in her Employer’s Confirmation form (OCF-2) that TD had received by April 20, 2016.

At no time did TD advise OA that it was unable to adjust her claim or determine whether IRBs were payable because she failed to indicate the last day she worked or that she is a primary caregiver in the disability certificates. Nor did TD advise OA that it required the dates in part 6 of the first disability certificate stating.  If that information was required by TD in order to determine whether IRBs were payable, s. 32(6) and s. 36(4) of the Schedule required the insurer to ask OA for that information.  The same comments apply as well to the second disability certificate.  Accordingly, because the information missing from the first and second disability certificates was either available to TD from the Application for Accident Benefits (OCF-1) and the Employer’s Confirmation of Income Form (OCF-2) and was never identified by TD or specifically sought from OA as required by s. 32(6) and s. 36(4) of the Schedule, the disability certificates contained enough information to allow TD to determine whether IRBs were payable or at least identify and notify OA as to what information was reasonably required. For these reasons, the Arbitrator found the first and second disability certificates were complete for the purposes of s. 36(2).

Failure to Provide a Certificate that Supports Entitlement

TD asks that OA’s appeal be dismissed without a hearing because she has not provided any proof that she sustained a substantial inability to engage in the essential tasks of the occupation in which she was employed at the time of the accident.  The Arbitrator was not prepared to dismiss the appeal at this preliminary stage of the proceedings just because OA has not filed evidence with the Tribunal for the preliminary issue hearing that proves entitlement on the substantive issue.

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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.