Tribunal File Number: 18-000582/AABS
Case Name: 18-000582 v Travelers
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
F. S.
Applicant
and
Travelers
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES
For the Applicant: Lawson Hennick, Counsel
For the Respondent: Jane Cvijan, Counsel
HEARD in Writing on: August 7, 2018
OVERVIEW
1The applicant, FS, was involved in a motor vehicle accident (“the accident”) on January 14, 2014 and sought accident benefits (“benefits”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”).
2FS appealed to the Licence Appeal Tribunal (the “Tribunal”) when her claim for medical benefits was denied by Travelers.
3The Schedule sets out detailed steps for making an application for benefits. An applicant must provide detailed information and meet deadlines for filing his or her application. The insurer is not required to pay benefits to an applicant who fails to take the required steps to claim benefits, unless the applicant provides a reasonable explanation.
4The Schedule bars an appeal to the Tribunal of an insurer’s refusal to pay benefits if the applicant has failed to follow the required steps to making a claim.2 Travelers submits that FS is barred from appealing its denial of her claims on this basis.
5On July 16, 2018, the Tribunal ordered that if FS’s claim is found to be not barred from proceeding, the Tribunal shall schedule with the parties a case conference to determine a date for the hearing of FS’s appeal on the substantive issues in dispute.
PRELIMINARY ISSUE
6Is the applicant barred under s.55 (1)1 of the Schedule from appealing the respondent’s refusal to pay her claims because she did not follow the procedures for claiming ABs that are required by s.32?
FINDINGS
7FS did comply with the prescribed procedures for claiming benefits with respect to her claim for IRBs. As a result of my finding, FS is not barred from appealing the respondent’s refusal to pay her claims.
REASONS
Prescribed Process for Statutory Accident Benefits Applications
8Section 32 of the Schedule prescribes the procedures for claiming accident benefits in detail, including a seven day time limit for notifying the insurer of an accident and a 30 day time limit for completing and submitting claim applications once the necessary forms have been received from the insurer.
9The section also sets out the insurer’s obligations to promptly provide the applicant with the application forms and specific, detailed explanatory information once it is notified that a person it insures has been in an accident.
10Section 32(6) of the Schedule requires the insurer to follow up with the insured person on any incomplete or unsigned application. Section 36(7) requires the insurer to process a signed but incomplete benefits application unless “after a reasonable review of the incomplete application it is unable to determine without the missing information, whether a benefit is payable”.
11It is relevant to this case that s.40 (1) of the Schedule states that the notification timelines set out in s.32 apply to treatment and benefits claims under the MIG.
12I have noted the relevant specific requirements in my analysis of whether or not the applicant complied with the Schedule in making her claims for benefits.
Consequences of Non-Compliance
13If an applicant fails to comply with the timelines set out in the Schedule for submitting her claim for benefits to the insurer, the insurer is not liable to pay her benefits claim.3
14Section 34 of the Schedule allows an applicant who fails to meet the time limits for submitting his/her claim or for providing required information to remain eligible for benefits if he or she has a reasonable explanation for the delay.
15Section 55(1)1. of the Schedule bars an insured person from applying to the Tribunal if that person has failed to meet the prescribed timelines for notifying the insurer of the circumstances giving rise to a claim for benefits or for submitting that claim.
16Accordingly:
i. If I find that the applicant has failed to comply with the requirements of ss.32 of the Schedule, without a reasonable explanation, the respondent is not liable to pay the disputed benefits, and her appeal is barred under s.55(1)1.
ii. If I find the applicant’s benefits applications were either compliant or the delay “reasonably explained”, and that the respondent has failed to comply with its obligations to process her claims according to the Schedule, the matter will proceed as ordered by the Tribunal on July 16, 2018.
Did the applicant comply with the Schedule in making her claim for benefits?
17The agreed facts are:
i. FS submitted an application for accident benefits (“OCF-1”) on January 27, 2014, nine business days after the accident.
ii. Travelers responded on February 10, 2014 with the required forms and information about available benefits, including information about the MIG, with advice to submit a claim using a Treatment Confirmation Form (“OCF-23”) – which is the form used to claim treatment for injuries governed by the MIG.
iii. FS submitted a disability certificate (“OCF-3”) dated May 30, 2014, signed by her family physician, Dr. Erdelyi, which noted sprain/strain injuries and headaches.
iv. In February, 2016, FS’s treatment provider, Pro-Med, submitted a treatment plan (“OCF-18”) to Travelers, followed by a treatment confirmation form (“OCF-23”).
Date of Notification and Application for Benefits
18According to FS:
i. Travelers was made aware of the accident on the day it happened. This is verified in the adjuster’s log notes dated January 14, 2014.
ii. She discussed the accident and details with Travelers’ adjuster “TG” on January 15, 2014 and was advised of the requirement to complete and return an OCF-1 before any payment on any claims could be made. This is verified in the adjuster’s log notes dated January 14, 2014.
iii. Travelers provided her with information regarding benefits and the application process, dated February 10, 2014. Travelers’ log notes dated February 10, 2014 confirmed that “TA” – a claims representative – would be handling her claim along with another claim from FS arising from a previous accident.
19Travelers rebuts FS’s assertions and arguments:
i. FS did not provide the notice required by s.31 (1) by telephone on January 14 and 15, as she claims. Even if verbal notice is sufficient, which Travelers denies, FS gave Travelers equivocal information, indicating that she was “okay”, returning to both school and work, and continuing treatment for injuries sustained in two previous accidents. Travelers had no way of knowing what, if any, claims FS intended to pursue in relation to the accident in this case.
ii. Travelers states that FS did not submit a treatment plan (“OCF-18”) on January 27, 2014, as she claims, and she provides no evidence to show that she did.
iii. Travelers argues that FS first notified it of her intention to apply for benefits 25-26 months after the accident, because that is when she filed her OCF-23 and OCF-18s.
20I find on a balance of probabilities that the applicant complied with her notification and benefits application obligations under the Schedule because:
(i) The evidence shows that Travelers was notified of the accident and the circumstances surrounding it by no later than January 15, 2014, the day after the accident. My reading of the log notes/records is that any reasonable person would infer that FS intended to claim accident benefits. There is no basis that I am aware of for any assertion that verbal notification of an accident is insufficient to comply with the prescribed initial notification requirement.
(ii) The evidence indicates – and the parties agree -- that an OCF-1 was filed on January 27, 2014, within 30 days after the accident as required. In my view, this meets the follow-up requirement of s. 32.
(iii) While I agree with Travelers that s.40(1) applies to deadlines for filing OCF-23 forms, there is no basis that I can see for any argument that failure to submit an OCF-23 within two years by a claimant who has already submitted an OCF-1 constitutes non-compliance with s. 32 of the Schedule. I read s.40 (1) together with s.32 as meaning a claimant must file either an OCF-1 or an OCF-23 within 30 days of the accident. I do not read it to mean that filing an OCF-1 is insufficient if an applicant later elects to file an OCF-23.
(iv) I find that the wording of Travelers’ communication of February 10, 2014 was not worded in such a way as to tell FS definitively that she must file an OCF-23 to preserve her right to claim medical benefits. I am unaware of any basis for the implied suggestion by Travelers that FS was somehow obligated to follow advice or to immediately accept its preliminary view that her reported injuries “appear to fall under the [MIG]” and that “therefore treatment should be submitted accordingly on an OCF-23 form”. I also note that there was nothing to warn FS that she faced the extinction of her claim if she failed to follow Travelers’ advice. In my view, it would be inconsistent with the meaning of the Schedule – and unnecessary to support notification objectives -- to erect a statute-bar against FS’s claim on this basis.
(v) I find Travelers’ argument that FS’s conduct of her claim is prejudicial to it unconvincing. Travelers does not explain persuasively how it would be disabled from assessing FS’s injuries by her decision to file an OCF-23 after all, and two years after the accident. According to the evidence, Travelers been closely involved with FS for some time as an accident claimant, formed an opinion with respect to the nature of her injuries based on information it had at the time of injury, and it is perfectly capable of arguing the inferences that may be drawn from a long delay in claiming treatment for determining the necessity of that treatment before a hearing adjudicator. Any prejudice to it is outweighed by the extreme prejudice to FS of barring her appeal.
CONCLUSIONS
21I find on a balance of probabilities that the applicant complied with her notification and benefits application obligations; accordingly, FS is not barred from her appeal and the matter may proceed to a hearing.
22The Tribunal must, in accordance with the Order issued on July 16, 2018, schedule a case conference to discuss next steps in the appeal process.
Released: September 27, 2018
___________________________
Christopher A. Ferguson,
Adjudicator
Footnotes
- O.Reg. 34/10.
- s.55 of the Schedule
- see s.32(8)