Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2012 ONFSCDRS 28
FSCO A11-001034
BETWEEN:
SUHASHINI JOHN ROBINSON Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
DECISION ON A MOTION
Before: Alec Fadel
Heard: By telephone conference call on October 14, 2011 and by written submissions which closed on December 30, 2011
Appearances: David S. Wilson for Ms. John Robinson Shirline Apiou for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Suhashini John Robinson, was injured in a motor vehicle accident on March 23, 2009. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 A dispute arose concerning the applicant’s entitlement to various accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. John Robinson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
At the pre-hearing, the applicant moved for an order for interim caregiving and housekeeping and home maintenance benefits. At the hearing of the motion, the applicant clarified that she was requesting interim benefits by way of back payment from the date they were terminated and payable on an ongoing basis up to the commencement of the hearing.
The applicant argues entitlement to an order for interim benefits solely on the basis of a breach by the insurer of a mandatory provision in section 37 of the Schedule. The applicant did not make out a case of urgency or need and the merits of the case were also not a factor in this motion.
The issues in this motion are:
Is the insurer in breach of section 37 of the Schedule?
If yes, does the breach give rise to an interim order for benefits?
Result:
The insurer is in breach of section 37 of the Schedule.
The breach does not give rise to an order for interim benefits.
The motion is dismissed.
EVIDENCE AND ANALYSIS:
Under section 37(1)(a) of the Schedule, insurers who wish to assess an insured person’s continuing entitlement to a benefit must first request an updated disability certificate. Section 37(1)(a) of the Schedule reads as follows:
37(1) If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer,
(a) shall request that the insured person submit within 15 business days a new disability certificate completed as of a date on or after the date of the request.
In this case, the applicant sent the insurer a disability certificate dated January 5, 2010. By letter dated March 1, 2010, the insurer informed the applicant that it had arranged a section 42 physiatry assessment for March 13, 2010.2 Also, by letter dated March 3, 2010 the insurer informed the applicant of a section 42 occupational therapy assessment scheduled for March 17, 2010. The applicant attended at the assessments and subsequently her benefits were terminated as a result of same effective April 19, 2010.
The insurer did not request a new disability certificate.
The applicant maintains that, under section 37, the insurer was not entitled to rely on the January 5, 2010 disability certificate and should have requested a new one. The applicant reasons that the use of the word “shall” in s. 37(1)(a) indicates that it does not appear to be the right of the insurer to rely on a previous disability certificate as the wording in the section stipulates “new” disability certificate as of a date on or after the date of the request. The applicant submits that s. 37(5) specifically requires the insurer to deliver a copy of the s. 42 report to the insured person “and to the health practitioner who completed the disability certificate.” The applicant argues that this subsection is specifically referencing the new disability certificate referred to in s. 37(1)(a).
It is the insurer’s position that there is no breach of the Schedule regarding sections 37(1) and (5) with regard to caregiving and housekeeping. It indicated that by the time of the January 2010 disability certificate, the insurer was already in receipt of a number of disability certificates with very little variation between them. The insurer urged that I take a common sense approach by finding that it was already in possession of a current disability certificate and there was no need to request another. The insurer submits that if it is found there was a breach it was limited to subsection (5) and should not be considered a blatant disregard of the Schedule that might warrant the extraordinary relief of interim benefits without a full hearing on the merits.
Is there a breach of section 37?
The insurer had in its possession a disability certificate dated January 5, 2010 that indicated five to eight weeks of anticipated disability. The insurer requested an insurer examination by letter dated March 1, 2010. This is eight weeks after the completion of the January 5, 2010 treatment plan.
In Yogesvaran and State Farm Mutual Automobile Insurance Company, Arbitrator Miller examined s. 37(1)(a) and found that the requirement was for a “new” or