ACCIDENT BENEFITS UPDATE: Glass half full?

In Applicant and Royal and Sun Alliance, a recent decision of the Licence Appeal Tribunal (LAT), the applicant was injured in a car accident on March 3, 2014 while she was still a minor (age 14). She applied for accident benefits including non-earner benefits (NEBs) under the Statutory Accident Benefits Schedule (SABS). Her insurance company, Royal and Sun Alliance (RSA) denied the NEBs and treated her injuries under the Minor Injury Guideline (MIG), which caps treatment at $3,500.

The applicant commenced mediation of various issues in dispute, including whether: the MIG applied to her injuries, she qualified for NEBs, and/or she was entitled to ongoing treatment above the MIG cap. The Application was submitted on June 14, 2017, more than 2 years after RSA’s denial. Mediation failed to resolve the dispute, and this proceeding was commenced.

At the hearing, RSA argued that the MIG applied to the applicant’s injuries. As a result, she could not meet the test for NEBs, which requires aevidence of a, "complete inability to carry on a normal life". Moreover, RSA claimed that the applicant was barred from proceeding because she had failed to file for mediation within the 2-year limitation set out in the SABS.
The applicant stated thatthe 2-year limitation period did evenbegin until she turned 18 (October 2017). Under s. 6 of the Limitations Act, limitation periodsare suspended for minors unless a litigation guardian is appointed.

RSA maintained that the Limitations Act did not apply because the applicant’s mother was her litigation guardian. She had completed all the paperwork and had made decisions concerning the applicant’s rehabilitation.

Adjudicator Hines did not agree that the applicant’s mother was a litigation guardian as required under the Limitations Act. According to Black’s Law Dictionary, a litigation guardian is, "... appointed by the court to appear on behalf of an incompetent person or minor party." In order to represent a minor at the LAT, a parent or legal guardian only has tofile a form- "Representing Minors and Incapable Persons". Adjudicator Hines viewed this step merely asa parent taking required steps to obtain benefits for her child, and not equivalent to issuing a Statement of Claim to start a lawsuit.

As Adjudicator’s Hines explained, s. 6 of the Limitations Act is designed to protect minor plaintiffs who are not capable of making decisions or appreciating the consequences of those decisions. Substituting an adult litigation guardian, accountable to the Court and sworn to represent the interests of the minor, alleviates the need to suspend a limitation period in a lawsuit. Significantly, no settlement on behalf of a minor can occur without Court approval.

No similar procedural safeguards govern a LAT hearing. As a result, minors are especially vulnerable in accident benefits cases, where their interests can be overridden by self-serving parents. It is further complicated by the fact that LAT hearings are far less formal than trials. Claimants are at liberty to represent themselves in accident benefits disputes and often do not hire a lawyer.

As a result of these considerations, Adjudicator Hines found that the limitation to commence mediation of disputed benefits had not expired. However, having acknowledged the applicant’s right to proceed, the adjudicator did not find that she met the "complete inability" test for NEBs. In fact, given the nature of the initial injuries and the lack of compelling evidence of ongoing impairment, she accepted RSA’s position that the MIG applied to the applicant’s injuries. Therefore, she held that the disputed treatment plans were not reasonable and necessary.

If you have questions concerning your child’s entitlement to non-earner benefits, limitation periods for disputing denials, the Minor Injury Guideline or accident benefits issues generally, we can help. Please do not hesitate to contact us for a free consultation. At Campisi LLP, our practice is, "Clients first, excellence always"! Put us to work for you.