Quy Luong v. Allstate Insurance Company of Canada, 2015 ONFSCDRS 98

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 98

Appeal P14-00015

OFFICE OF THE DIRECTOR OF ARBITRATIONS

QUY LUONG

Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Joel Dick for Ms. Quy Luong

David Murray for Allstate Insurance Company of Canada

HEARING DATE:

February 20, 2015

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Arbitrator’s order of March 31, 2014 is confirmed and this appeal is dismissed.

2. If the parties cannot agree on the legal expenses of this appeal, an expense hearing shall be requested, as set out below, within forty-five days of this decision.

May 6, 2015

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Quy Luong has been a resident of OHIP-funded nursing homes since 2012 as a result of a 2010 accident. Ms. Luong appeals Arbitrator Ahlfeld’s finding that her insurer, Allstate, need only pay as an attendant care benefit under s. 16 of the SABS–1996¹ the copay, namely the portion of the cost of nursing home accommodation and services for which she is responsible, and not the maximum $6,000 monthly attendant care benefit.

II. BACKGROUND

Ms. Quy Luong was injured in an accident on February 13, 2010. After some weeks in a hospital and a rehabilitation centre, she was discharged to her son’s care on May 5, 2010.

Allstate paid the maximum $6,000 attendant care benefit (ACB) to Ms. Luong while she was living with her son. She was determined to be catastrophically impaired about two years after the accident. There is no dispute over the attendant care paid prior to May 2012.

In May 2012, Ms. Luong was moved to Kennedy Lodge, and in March 2013 to Mon Sheong Nursing Home, both funded by OHIP. The cost of Ms. Luong’s accommodation and attendant care services is therefore limited to the copay, which Allstate has paid as the ACB.

Ms. Luong submitted to the Arbitrator that given that the amounts calculated in the Form 1s, the documents in accordance with which the amount of an ACB is determined, exceeded $6,000.00, she was entitled to receive the maximum benefit of $6,000.00 from Allstate and not just the copay.

Allstate submitted that s. 16(2) states that ACBs will be paid for all reasonable and necessary expenses incurred by or on behalf of the insured person, and aside from benefits provided by the family,² the only such expenses were the copay. Further, it submitted that under s. 60(2), which deals with collateral benefits for medical, rehabilitation or attendant care benefits, it was not required to pay for an ACB “for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.”

The Arbitrator noted that Ms. Luong “is entitled to receive all of the nursing home services deemed reasonable and necessary by the occupational therapist in the Form 1 for the cost of the monthly copay amount” and that paying her “$6,000.00 monthly for attendant care benefits that she is receiving for less, without demonstrating the need for the additional benefits amounts to unfair enrichment of the Applicant that cannot be justified.” The Arbitrator further found that Allstate was entitled to the discount for collateral benefits set out in s. 60(2) of the SABS.

III. ANALYSIS

The Form 1 assessment of attendant care needs only establishes the maximum benefit available, and not the actual benefit payable, in any given month. The general principle regarding attendant care benefits was stated by Director’s Delegate Makepeace in Allstate Insurance Company of Canada and Da Rosa et al, (FSCO P04-00033, May 25, 2006): “Unlike weekly benefits, which are ongoing regular payments intended to compensate for disability and maintain an income stream, … attendant care benefits are provided on a claim by claim basis to pay for services the claimant needs as a result of the accident.”

It follows that since Ms. Luong did not have to pay for the services funded by OHIP, she is not entitled to payment for them.

Further, OHIP is any other insurance plan or law under s. 60(2), so Allstate is entitled to deduct the value of the payments made by OHIP. As Delegate Makepeace stated in Da Rosa, “The language is broad, does not exempt publicly-funded insurance plans, and extends to expenses reasonably available under ‘any other plan or law.’”³

This view was upheld on judicial review in Allstate Insurance Company of Canada v. Da Rosa, 2008 CanLII 29592 (ON SCDC). The Divisional Court drew a distinction between payments reasonably available under a general insurance scheme like OHIP, and payments possibly available under social benefit legislation to reduce the copay:

The section speaks of an exemption for the insurer if the expense is reasonably available “under any insurance plan or law or under any other plan or law.” It is not reasonable to interpret this as including social benefit type legislation. If the section was meant to include government subsidies of this kind, one would expect clear language to that effect.

That is, a social benefit subsidy is not insurance and so not deductible as a collateral benefit. Conversely, OHIP payments are insurance under a general insurance scheme and so are deductible as collateral payments. Therefore, the Arbitrator correctly found that Allstate is only liable for the copay.

The appeal is therefore dismissed.

IV. EXPENSES

If the parties cannot agree on the legal expenses of this appeal, the time for either party to request an appeal expense hearing under the Dispute Resolution Practice Code is extended to forty-five days from the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as submissions on such entitlement and/or quantum expense issues as are in dispute.

May 6, 2015

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The Arbitrator found that the ACBs should be increased by a few hundred dollars a month to account for services provided by the family.
3. 3Although Da Rosa dealt with s. 75(13) under the 1994 SABS, the relevant language is the same.```