August 19, 2013

Accident Benefits Update – Delayed Without Cause Can Lose Your Benefits

ACCIDENT BENEFITS UPDATE

For the week of August 19 to August 23, 2013

Anthonipillai v. Security National, FSCO A11-001168

https://www5.fsco.gov.on.ca/AD/4012p

Mary Anthonipillai, (the “Insured”), was injured in a motor vehicle accident on April 21, 2008. The Insured received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (the “Insurer” ), payable under  the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996(“SABS”) .  A dispute arose over caregiver benefits and housekeeping and home maintenance service benefits. The parties applied for arbitration at the Financial Services Commission of Ontario.

At issue was whether the Insured was barred from receiving caregiver and housekeeping and home maintenance benefits for the periods claimed because she failed to submit a Disability Certificate (OCF 3) to the insurer until after the period of her claims.  The insured submitted an OCF 3  3 ½  years after her accident and provided no explanation for the delay. The OCF 3 that was finally submitted only supported a claim for caregiver benefits.

The insured argued that the Insurer waived the requirement for an OCF 3 as it continued to assess her claim and pay medical rehabilitation benefits  despite the insured not providing an OCF 3.

Arbitrator Bujold disagreed with the Insured and made the distinction that the insurer applies a different criterion when determining whether treatment and assessments are reasonable and necessary.  A different test was applied when determining whether the disability tests have been met for paying caregiver and housekeeping benefits. The Insurer did not waive the requirement for an OCF 3 as it had an obligation to assess the claim, even if the insured had not complied with her obligation.

Arbitrator Bujold concluded that the Insured was required to comply with a time limit when submitting an OCF 3 or to provide an explanation for the delay. Failure to provide the Insurer with this information could lead to a delay in payment or disentitlement to those benefits.  However, the Insurer was required to communicate in clear language the consequences of failing to provide an OCF 3 by the insured.

IMPLICATIONS

This decision reflects the SABS requirement, imposed after the 2006 amendments, that an insured who applied for “specified benefits” (income replacement benefits, non-earner benefits, caregiver benefits or housekeeping or home maintenance benefits) submit a disability certificate with the application.  The legislation clearly required the disability certificate to form part of the insurer’s assessment for those specified benefits.   As such, it is important to communicate to clients that where a disability certificate has been requested, and there has been a delay in submitting the certificate, a reasonable explanation has to be submitted to the insurer to ensure that the benefit will not be delayed or disentitled.   A delay in submitting an OCF 3 can be overcome if the insured is able to provide a reason explanation for the delay.

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