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Because a catastrophic impairment designation is not a benefit", as defined under the Statutory Accident Benefits Schedule (SABS), there is no time limitation for disputing an insurer's denial. On January 6 2009, Zofia Machaj submitted an Application for Determination of Catastrophic Impairment (OCF-19) to RBC Insurance. After conducting insurer's examinations, RBC responded on May 25, 2009, stating 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." In order to dispute RBC's denial, an Application for Mediation was submitted by Ms. Machaj on July 18, 2011, which was almost two months beyond the two year limitation period that the Insurance Act stipulates is required. Section 281.1 of the Insurance Act establishes a limitation period, provides that a mediation proceeding, "...shall be commenced within two years after the insurer's refusal to pay the benefit claimed" (emphasis added). In 2015, Whitten J. issued a decision on a Summary Judgment Motion in the matter of Machaj v RBC General Insurance Company [2015 ONSC 4310], wherein he found in favour of RBC Insurance and ruled that the two-year limitation applied, because the denial, "...flushed out the consequences of the denial of the status of catastrophic impairment; namely, the enhanced benefits were not available." Ms. Machaj appealed. The Ontario Court of Appeal disagreed with Judge Whitten's decision, noting that, "In our opinion, by adding the words, "and you therefore you do not qualify for the increased benefits", the respondent insurer was doing nothing more than telling the appellant that she lacked status to claim increased benefits. The additional words did not convert what was, in substance, a denial of a catastrophic determination into a denial of the specific benefits that would trigger the commencement of the two year limitation period." RBC Insurance sought leave to appeal to the Supreme Court of Canada, but it was dismissed with costs. As such, under the current legislation, an insured person is not bound to dispute an auto insurance company's denial of catastrophic impairment determination within two years, unlike a denial of an actual "benefit" under the SABS. If you have been injured in an automobile accident and your insurance company has denied anything, it is always best to consult with a lawyer to ensure that your interests and entitlements are protected.
If an individual who is involved in a motor vehicle accident is incapable of self-care as a result of their injuries they are eligible to claim Attendant Care Benefits through their own insurance company. The insurer is only obligated to pay the benefit if the insured person has received the goods or services, has paid or promised to pay the expense, and if the person who provided the goods and services either (A) "did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident", or (B) sustained an economic loss as a result of providing the goods or services to the insured person. In the case of "B", the amount payable has been limited to the amount of the economic loss sustained as a result of providing the attendant care. The first option is normally interpreted as obligating an insurer to pay for a professional service to come into the injured person's home to provide attendant care, such as a personal support worker. The second option is normally interpreted as requiring an insurer to pay for any economic loss sustained by a "non-professional" (family member or friend) who provides attendant care to an injured individual. But what if the family member or friend is a professional personal support worker? In the Financial Services Commission of Ontario (FSCO) decision, Michael Walsh and Echelon General Insurance Company [FSCO A15-007448], Arbitrator Benjamin Drory confirmed that, if a family member or friend who is a personal support worker provides attendant care to an injured individual, they do not need to sustain an economic loss as a result of providing the attendant care and the amount of attendant care payable is not limited to the amount of any economic loss. Arbitrator Drory made the following comments in this decision: