In S.S. v. Economical, the Licence Appeal Tribunal found the claimant missed the limitation period to dispute the denial of attendant care and housekeeping benefits, which had been denied at 104 weeks, despite the claimant later being deemed catastrophically impaired. The Tribunal also found that subsequent payments of attendant care and housekeeping benefits, made in error by the insurer after the claimant was deemed catastrophically impaired, were irrelevant because the limitation period had expired well before the subsequent payments were made.
The claimant, S.S., was involved in a motor vehicle accident on July 29, 2009. The insurer paid the claimant attendant care and housekeeping benefits until the benefits were terminated pursuant to s. 18(2) and s. 22(2) of the SABS. This refusal to pay further attendant care and housekeeping benefits was communicated via a letter, dated October 4, 2011.
The claimant submitted an initial Application for Determination of Catastrophic Impairment (OCF-19), dated March 23, 2010, claiming impairment under criterion 1(e). The insurer assessed the claimant and found he was not catastrophically impaired under this criterion.
The claimant submitted two further OCF-19s, dated June 17, 2013 and January 8, 2014, under Criterion 8 and Criterion 7, respectively. On September 3, 2014, following the completion of s. 44 examinations, the insurer advised the claimant of their determination that he was catastrophically impaired. The insurer also mistakenly advised the claimant that he was entitled to attendant care and housekeeping benefits and paid him these benefits for approximately six months. Upon identifying the mistake, the insurer advised the claimant that benefits were paid in error and requested a repayment.
The claimant did not dispute the insurer’s denial of attendant care and housekeeping benefits until May 5, 2017.
Adjudicator Johal determined that the denial of October 4, 2011 was clear and unequivocal and complied with the principals set out in Smith v. Cooperators and the SABS. While the Adjudicator agreed that subsequent payments can negate a denial in certain cases, she agreed with the insurer’s position that, in this case, the claimant’s claim for ongoing attendant care and housekeeping benefits was already statue barred at the time of the subsequent payment. In other words, subsequent payments cannot revive a right that has been extinguished.
Lisa has an insurance law practice that has focused exclusively on insurance defence for 15 years. Her practice focuses on complex insurance-related litigation, including accident benefits and bodily injury. Read more ...
In the recent decision of Helmer v. Belairdirect Insurance Company, the Divisional Court dismissed the appeal a LAT adjudicator’s decision addressing the contentious issue of when professional service providers provide care “but for the accident” in the context of the Statutory Accident Benefits Schedule 2010 (“SABS”).
The issue of “but for the accident” was the central issue in dispute. In the present scenario, the claimant’s care provider was properly qualified as a personal support worker (“PSW”) prior to the accident. It was unclear whether she had been working in the capacity of a PSW until she began providing care for the claimant after the accident. At first instance, the LAT adjudicators found that the service provider was a professional.
Under the SABS, attendant care benefits provide reimbursement for expenses incurred to provide claimants with attendant care services. Due to legislative amendments in 2014, there are two classes of service providers who qualify for reimbursement. They are professionals (such as a PSW) and non-professionals who have sustained an economic loss by providing care. The SABS requires that for someone to be a “professional” they must be providing care “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”.
Macleod J., speaking for the Court, addressed two main issues. First, the Court confirmed that the applicable standard of review for appeals from the LAT to the Divisional Court was reasonableness. Notably, the Court found that even if the standard was one of “correctness” they would have still upheld the decision.
Second, he considered the adjudicator’s analysis of section 3(7)(e)(iii)(A) and its application to professional service provider. In addressing this issue the Court agreed with the adjudicators’ decision. It was their conclusion that section 3(7)(e)(iii) (A) required that the service provider was working or was looking for work at the time s/he performed the attendant care services, not at the time of the accident. The phrase “but for the accident” did not have a temporal requirement. The Court noted the intention of the section was to prohibit injured parties from capitalizing on their injuries by inventing jobs for friends and family members who were not legitimate providers of care. As long as the care provider would have been providing such services whether or not the applicant had been injured, then the claimant could be reimbursed for payments made.
On a positive note, this decision suggests that the LAT and the Courts are aware of the concerns regarding improper classification of “professional” service providers. Insurers should feel comfortable asking for additional information from claimants to establish whether service providers are appropriately classified as “professionals”. Secondly, this decision suggests that the characterization of a professional requires something more than simply having the qualifications to provide care. A provider must be actively working or looking for work. Accordingly, situations where an individual is qualified but otherwise engaged in another occupation at the time a claimant needs care may not meet the “but for the accident” requirement.
Can a claimant receiving accident benefits still sue an insurer for extra-contractual damages in court, in light of the April 1, 2016 changes to the Insurance Act? That was the question before Justice Ramsay in a Rule 21 motion recently brought by Economical Mutual Insurance Company.
Section 280 of the Insurance Actwas amended on April 1, 2016, to provide that all disputes in respect of entitlement to statutory accident benefits or the amount thereof were to be brought before the Licence Appeal Tribunal (LAT). Section 280(3) specifically provides that no person may bring a proceeding in court for any dispute that falls within the jurisdiction of the LAT, with the exception of an appeal from a decision of the LAT or an application for judicial review.
In this case, Economical was the defendant in an action brought by the plaintiff, Morgan Stegenga, seeking damages related to the handling of her accident benefits claim due to alleged bad faith, negligence and fraud. The Statement of Claim was issued after April 1, 2016.
Economical brought a Rule 21 motion to have the claim struck on the basis that it disclosed no reasonable cause of action and on the basis that the plaintiff’s claim fell within the exclusive jurisdiction of the LAT.
The motion proceeded on March 5, 2018. In his endorsement, released March 6, 2018, Justice Ramsay agreed with Economical’s position that the phrase “in respect of” used in section 280 of the Insurance Actwas very broad and was intended to govern alldisputes regarding accident benefits entitlement. Justice Ramsay also noted that the LAT’s exclusive jurisdiction was essential to the goals of the legislative changes of April 1, 2016. He further confirmed that he was bound to look at the facts giving rise to the dispute and not the legal characterization of the wrong.
Justice Ramsay concluded that there was “no reason to doubt that the legislature, in enacting the present s.280 of the Insurance Act, intended to deprive a claimant of resort to the court at first instance whenever the claim is based on denial of accident benefits, no matter how the denial is characterized in legal terms.” As such, the action was dismissed.
This case confirms that, as a result of the April 1, 2016 changes to the Insurance Act, alldisputes related to accident benefits entitlement, no matter how they are characterized or pled, must proceed through the LAT and may no longer be brought before the courts.
Julianne defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, subrogated losses and general negligence claims. Read more...
S.T. v. Economical, LAT 16-003034/AABS, LAT Reconsideration, Executive Chair Linda P. Lamoureux
The Applicant submitted a Request for Reconsideration 42 days after receipt of the Tribunal’s decision instead of submitting it within 21 days as required by the LAT Rules. The Request was filed contemporaneously with an Application for Judicial Review. The Applicant explained the delay by arguing that none of the applicable legislation requires a party to seek reconsideration before applying for judicial review.
The Executive Chair disagreed, stating that it is a well-established principle of administrative law that parties exhaust all available remedies before seeking judicial review.
The explanation offered by the Applicant was insufficient to excuse the late filing. The Executive Chair also considered the substance of the reconsideration request and found that, in any event, there was no error in the Tribunal’s decision.
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
A.R. v. Wawanesa Mutual Insurance Company, LAT AABS 17-000149, Adjudicator Msosa
This matter involved a dispute over medical benefits. The applicant was seeking payment for two orthopedic assessments; one submitted approximately 3 years post-accident and the second submitted on the eve of a FSCO arbitration roughly 4.5 years post-accident. The insurer took the position that neither orthopedic assessment was reasonable and necessary because the claimant sustained uncomplicated soft-tissue injuries as a result of the accident.
Importantly, the applicant included the two incurred orthopedic reports but failed to include the relevant OCF-18s in the materials submitted to the LAT. The adjudicator commented that the Applicant had not connected the evidentiary dots to prove that the assessments were reasonable and necessary.
The adjudicator held that the OCF-18s were not reasonable and necessary as the applicant had not provided the treatment plans setting out the goals and purpose of the assessment. The adjudicator found that the applicant had not provided any evidence of an orthopedic injury.