Denial of Catastrophic Injury Status does not trigger Limitation Period against a Plaintiff

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Case example

A 2016 Ontario Court of Appeal decision examined whether a woman's claim for catastrophic injury Statutory Accident Benefits is statute-barred under the Insurance Act for being past the applicable limitation period.

The case began when the appellant, Zofia Machaj completed an OCF-19 form seeking a catastrophic impairment designation (although she did not apply for specific benefits on her application at this time). Her insurer, RBC General Insurance, denied her request via an OCF-9 Explanation of Benefits form which stated that RBC assessors had formed a consensus opinion that Ms. Machaj did not sustain a catastrophic impairment and thus did not qualify for increased benefits.

Ms. Machaj applied for mediation to appeal RBC's decision. However, the insurer sought a summary judgement to declare the appeal statute-barred on the basis that Ms. Machaj failed to meet the two-year limitation period as stated in the Insurance Act. The motion judge ruled in favor of the insurer and found that Ms. Machaj's claim was barred because a mediation was not commenced within two years of the insurer's refusal to pay the benefits claimed. The judge agreed with the insurer that the words "and therefore you do not qualify for increased benefits", which were written on the OCF-9, constituted a proper denial of said benefits under the Insurance Act.

In Machaj v. RBC General Insurance Company, Ms. Machaj challenged the ruling and argued that her claim was not barred. She cited the ruling in Do v. Guarantee Insurance Co., which found that catastrophic impairment status is not, in itself, a benefit, but rather a designation that entitles a claimant to request the highest maximums in benefits including medical/rehabilitation and attendant care benefits. The issue for the appeal judge to decide was whether or not the motion judge erred by concluding that the ruling in Do v. Guarantee did not apply in Ms. Machaj's case.

Do v. Guarantee Insurance Co.

Mr. Dong Do was injured in a car accident on October 9, 2005. In December 2006, he applied for catastrophic impairment determination under the Statutory Accident Benefits Schedule (SABS). His insurer, Guarantee, denied the status on May 2, 2007, with a letter containing an Explanation of Benefits (OCF-9).

Mr. Do underwent further testing to rebut Guarantee's assessment. However, on April 10, 2008, Guarantee informed him that their assessment was unchanged and that he still did not qualify for CAT status. In March 2011, after mediation failed, Mr. Do applied for arbitration. However, prior to this proceeding, Guarantee filed a motion to determine whether Mr. Do was precluded from arbitration on the basis that his application for mediation was filed more than two years after the first refusal date, meaning it missed the two-year limitation period. The arbitrator ruled that the refusals by Guarantee to designate Mr. Do as catastrophically impaired did not trigger the limitation period and thus Mr. Do's action was not barred.

Guarantee appealed the motion judge's decision to the Ontario Superior Court. The Appeal court upheld the original decision and ruled that an insurer's denial of the status of catastrophic impairment for a claimant does not in itself amount to the denial of a benefit and further, the limitation period commences against the claimant only when a specific benefit is denied. The judge in Ms. Machaj's case agreed with the rationale in Do, noting that the appellant made no claim for specific benefits when she completed the OFC-19 form seeking "catastrophic determination".

The judge ruled that there was really no difference in substance between the denial that was made in the current situation and the denial made in Do v. Guarantee Insurance Co. and disagreed with RBC that the words "and therefore you do not qualify for the increased benefits" were sufficient. The Court granted Ms. Machaj's appeal and set aside the motion judge's order to dismiss her claim as statute-barred. Ms. Machaj was also entitled to her costs for the current appeal.

Filing For Statutory Accident Benefits

The process of filing for statutory accident benefits under your vehicle insurance policy can be complicated and requires various medical assessments, which must be completed and submitted to the insurer within specified time limits. However, if you were seriously or catastrophically injured by a negligent driver, then filing for accident benefits is not your only option: you may also file a tort action against the 'at fault' driver. Not unlike statutory accident benefits, a tort claim is also subject to a limitation period: the injured person must file a claim within two years of when they realized the full extent of their injuries, which in most cases, is two years from the date of the accident.

Contact Rastin Gluckstein Lawyers

If you or a loved one sustained a serious injury, it is always a good idea to consult with a knowledgeable personal injury attorney who can provide you with expert advice on the optimal approach for obtaining owed compensation and will ensure that you meet all required timelines for making a claim. At Rastin Gluckstein Lawyers, our respected team of personal injury lawyers have many years of experience in helping accident victims and their families through recovery and in every step of the claims process. Contact us today for a free no-obligation consultation.


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