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The importance of attaching dispute resolution forms to denial letters


June 8, 2022   by David Gambrill

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An injured auto driver has lost an appeal against her insurer, which denied benefits a full seven years before she launched her legal challenge against the decision. One notable aspect of the case was whether the claimant received a dispute resolution form when she was first told her benefits would be cut off.

The courts essentially rejected the claimant’s appeal for being statute-barred, noting that it was launched more than three years after a mediation that resulted in her claim being denied.

TD did not appear to be in any danger of losing the case. Even so, the Ontario Court for Appeal decision did note some initial confusion over when the insurer denied the benefits, and whether the claimant had been told about her appeal rights at that time.

Ummugulsum Yatar was injured in a motor vehicle collision on Feb. 7, 2010. At the time, she was insured under an auto insurance liability policy issued by TD Insurance.

She applied to TD Insurance for accident benefits on Feb. 22, 2010. She elected to claim Income Replacement Benefits (IRBs), as well as housekeeping and home maintenance benefits.

TD initially paid benefits. But on Jan. 7, 2011, it wrote to Yatar and stated payment of IRBs, housekeeping and home maintenance benefits had been stopped effective Jan. 4, 2011, because it had not received a completed disability certificate within the time requested in a Dec. 8, 2010 letter.

TD advised Yatar that “no benefit is payable for the period after the date specified and before the day the insurer receives the completed disability certificate.” It also told her she had to attend an examination by its chosen assessors at the times and locations set out in an attached Notice of Examination.

In January 2011, Yatar attended two insurer’s medical examinations, one with a psychologist and one with a physiatrist, for the purpose of determining her entitlement to IRBs, housekeeping and home maintenance benefits.

On Feb. 16, 2011, TD Insurance denied Yatar’s claim for housekeeping and home maintenance benefits based on the results of the examinations. In the same letter, TD advised Yatar she was entitled to IRBs and that it would continue to monitor her psychological treatment and rehabilitation in order to assess her ongoing entitlement to this benefit.

On Sept. 6, 2011, Yatar attended a third insurer’s medical examination to address her ongoing entitlement to IRBs. About two weeks later, TD Insurance wrote Yatar to deny her claim for IRBs, and to advise that her IRB payments would cease effective Sept. 28, 2011.

A tribunal adjudicator observed dispute resolution forms were not attached to the insurer’s correspondence that denied benefits in letters dated Feb. 16 and Sept. 6. He did find, however, that a dispute resolution form had been attached to the Jan. 7, 2011 letter, where the payment of IRBs had initially been denied.

Yatar disputed whether the Jan. 7 letter had actually been the one to deny coverage.

“In advancing this argument, [Yatar] misreads the adjudicator’s decision,” the Appeal Court found. “The adjudicator acknowledged that, in his preliminary decision, he had made an error when he said that the IRBs had been denied in the Feb. 16, 2011 letter. He corrected that finding in his reconsideration decision and said it was the Sept. 19, 2011 letter that finally denied the IRBs.

“The adjudicator then reiterated his central point, which was that the Jan. 7, 2011 letter had denied both the IRBs and the housekeeping and home maintenance benefits. He found that a dispute resolution form had been attached to that letter.

“The adjudicator therefore found that, when the IRBs were finally denied by the letter of Sept. 19, 2011, [Yatar] was fully informed of the dispute resolution process. Consequently, he concluded that there was no deficiency that undermined the denial of the IRBs through the Sept. 19, 2011 letter.”

Ultimately, Yatar went through a mediation with the insurer, which extended the deadline for her to make a legal challenge to the findings up until April 2014. And yet she did not make an application to challenge the tribunal’s decision to deny benefits until Mar. 16, 2018 – well after the two-year deadline for launching a legal challenge.

 

Feature photo courtesy of iStock.com/MicroStockHub