Margaret Browne v. Chubb Insurance Company of Canada, 2011 ONFSCDRS 2

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2011 ONFSCDRS 2

FSCO A10-000197

BETWEEN:

MARGARET BROWNE

Applicant

and

CHUBB INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran

Heard: September 16 and December 13, 2010.

Appearances: David Hayward for Ms. Browne George Kanellakos for Chubb Insurance Company of Canada

Issues:

The Applicant, Margaret Browne, was involved in a motor vehicle accident on April 30, 2006. She applied for and received statutory accident benefits from Chubb Insurance Company of Canada (“Chubb”), payable under the Schedule.¹ Chubb terminated weekly caregiver benefits on April 30, 2008. The parties were unable to resolve their disputes through mediation, and Ms. Browne applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

1. Did Chubb terminate caregiver benefits in accordance with section 37 of the Schedule, and if not, what are the consequences?

2. Was Chubb required to advise Ms. Browne of her right to apply for a non-earner benefit under the Schedule?

3. Is Ms. Browne entitled to interest on overdue payments under section 46 of the Schedule?

4. Is Ms. Browne entitled to a special award because it unreasonably withheld benefits pursuant to subsection 282(10) of the Insurance Act?

Result:

1. Chubb did not terminate caregiver benefits in accordance with section 37 of the Schedule. Chubb shall pay to Ms. Browne an interim caregiver benefit from May 1, 2008 to June 8, 2009 in the amount of $250 per week pending the determination of her final entitlement following a full arbitration hearing.

2. Chubb was required to advise Ms. Browne of her right to apply for a non-earner benefit under the Schedule. Chubb shall pay to Ms. Browne an interim non-earner benefit from June 9, 2009 and ongoing in the amount of $185 per week pending the determination of her final entitlement following a full arbitration hearing.

3. The issue of interest on overdue payments is deferred to the hearing arbitrator.

4. The issue of a special award is deferred to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Ms. Browne was a passenger on a motorcycle that was struck by an automobile on April 30, 2006. She is the mother of two children and was the primary caregiver for her 12-year old daughter at the time of the accident. Her daughter turned 16 years of age on June 8, 2009.

Chubb paid Ms. Browne the caregiver benefit at the rate of $250 per week until the second anniversary of the accident. By letter dated May 8, 2008, Chubb informed Ms. Browne that caregiver benefits were payable for only 104 weeks from the date of loss. By letter dated June 11, 2008, Chubb informed Ms. Browne of an alleged overpayment of her caregiver benefit.

Ms. Brown filed for mediation at FSCO on May 12, 2009 disputing the termination of the caregiver benefit. On June 23, 2009, Ms. Browne provided Chubb with a report from her family doctor dated June 17, 2009. On September 14, 2009, Ms. Browne provided Chubb with reports from her psychologist and an occupational therapist. On November 13, 2009, Ms. Browne provided Chubb with a report for a 5-day situational assessment which was conducted in October 2009. On November 23, 2009, Ms. Browne informed Chubb that it had failed to follow the procedure outlined in section 37 when terminating her caregiver benefit.

A FSCO mediation was conducted on January 5, 2010 and failed to resolve the dispute over Ms. Browne’s entitlement to caregiver and non-earner benefits. On April 21, 2010, Dr. Florence Muniz from the Acquired Brain Injury Clinic in Hamilton