June 9, 2015

We are Not Entitled to our Entitlements. Form 1= Maximum Available, Not Payable

Luong v Allstate, FSCO 4484, Appeal P14-00015, Arbitrator David Evans, (Final Decision)




MVC 2010. Between the collision and 2012, Ms. Luong resided with her son and received $6000 monthly in attendant care. She was determined to be catastrophically impaired. She began residing in an OHIP-funded nursing home in 2012.
Ms. Luong unsuccessfully submitted that she was entitled to receive the maximum benefit of $6000 from Allstate, as quantified by the Form 1 after moving to the nursing home. Arbitrator Ashfield determined that the cost of Ms. Luong’s accommodation and attendant care services was limited to the co-pay, which Allstate had paid as an attendant care benefit.


Decision on Appeal
Likewise, Arbitrator Evans found that Allstate was only liable for the co-pay rather than the Form 1 amount. OHIP payments are insurance under a general insurance scheme under s. 60(2) and so are deductible as collateral payments.
Arbitrator Evans drew the distinction between the Form 1 which establishes the maximum benefit available and the actual benefit payable. Allstate was entitled to deduct the value of the payment made by OHIP.
Social benefit subsidies are not insurance and are not deductible as collateral insurance. The Divisional Court in Allstate Insurance Company of Canada v. Da Rosa, [2008] CanLII 29592 (ON SCDC) has drawn a careful distinction between payments reasonably available under a general insurance scheme like OHIP and payments possibly available under social benefit legislation to reduce the co-pay. This decision is restricted to OHIP payments.


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