Tribunal File Number: 18-005057/AABS
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:
K. D.
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Philip Yeung, Representative
For the Respondent:
Dale Stuckless, Counsel
HEARD:
In Writing on August 12, 2019
OVERVIEW
1The applicant was injured in an automobile accident on April 10, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain non-earner and attendant care benefits. As a result, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2In response to the application, the respondent raised two preliminary issues which are the subject of this hearing.
PRELIMINARY ISSUES
3The preliminary issues in this hearing are:
Is the applicant disentitled from seeking non-earner benefits (“NEBs”) pursuant to section 36(3) of the Schedule given that a disability certificate was not submitted?
Is the applicant disentitled from seeking attendant care benefits (“ACBs”) given that no assessment of attendant care needs (‘Form 1”) or request for an in-home assessment was submitted?
RESULT
4The applicant is not entitled to NEBs for the period prior to July 9, 2019 when a disability certificate was submitted.
5The applicant is not entitled to ACBs.
BACKGROUND
6The applicant was involved in an accident on April 10, 2016 and claimed entitlement to accident benefits from the respondent. Following receipt of the applicant’s claim, the respondent requested the applicant submit a disability certificate to determine entitlement to specified benefits, if any. However, the applicant did not submit a disability certificate for this subject accident, as requested by the respondent, until July 9, 2019, after the initial submissions for this preliminary issue hearing were served. The disability certificate submitted on July 9, 2019 and dated June 28, 2019 indicates the applicant qualifies for NEBs.
7On October 21, 2016, the applicant made a claim for reimbursement of attendant care expenses. In response, the respondent requested the applicant provide a Form 1 in order to quantify the applicant’s attendant care needs, if any. The applicant has not provided a Form 1 during this hearing but submitted a treatment and assessment plan proposing an assessment to complete a Form 1. The treatment and assessment plan is dated July 9, 2019 and was submitted on the same day, after initial submissions for this preliminary issue hearing were served.
8The respondent holds the applicant is not entitled to NEBs for the period prior to the submission of a disability certificate or ACBs prior to the submission of a Form 1, as the applicant did not submit the requisite forms to make claims for these benefits. I agree for the reasons that follow.
SECTION 36 & THE PROCESS FOR CLAIMING NEBs
9The process for claiming NEBs is outlined in section 36 of the Schedule. Specific to this matter, section 36(2) provides that an applicant seeking NEBs shall submit a completed disability certificate with their application and section 36(3) states an applicant who fails to submit a completed disability certificate is not entitled to NEBs for any period before the completed disability certificate is submitted.
10I find the applicant is not entitled to NEBs prior to July 9, 2019 because the applicant did not submit a disability certificate as required by the Schedule.
11As addressed by the respondent in submissions, the language in section 36(3) is compulsory and there is no exception to this. The applicant’s claim that any failure to provide the requisite disability certificate was an oversight is irrelevant considering the mandatory the language in section 36(3). Likewise, the respondent’s failure to request an examination under oath or any permission to disclose medical information does not override the compulsory language in section 36(3).
Can a disability certificate from one claim be substituted for a different claim?
12I find the submission of a subsequent disability certificate, dated January 3, 2019 and submitted as part of a separate claim for statutory accident benefits relating to a different accident which occurred on July 18, 2017 does not satisfy the requirement outlined in section 36(3). This is because a disability certificate refers to a specific accident for which an insured person is making a claim for benefits and for which the respondent must allocate the consumption of benefits to.
13The disability certificate dated January 3, 2019 specifically refers to a claim for benefits stemming from an accident which occurred on July 18, 2017. I find this triggers an application for NEBs for the 2017 accident only because there is no evidence to suggest this claim for NEBs is related to the 2016 accident. It would be unreasonable to expect the respondent to consider a disability certificate attributed to a 2017 accident is for an unrelated accident which occurred in 2016. Likewise, it would be unreasonable to expect the respondent to split the allocation of benefits between the two open claims when no disability certificate was submitted for the 2016 accident.
SECTION 42 & THE PROCESS FOR CLAIMING ACBs
14The process for claiming ACBs is outlined in section 42 of the Schedule. It provides that, amongst other things, an application for ACBs must be in the form of and contain the information required in the “assessment of attendant care needs”, otherwise known as a Form 1. Section 42(5) adds that an insurer may, but is not required to, pay an expense incurred before a Form 1 is submitted to the insurer.
15I find the applicant is not entitled to ACBs for the following reasons.
16A Form 1 is a document which outlines an insured person’s care needs and allocates a monetary value to compensate for the care provided to cover those needs. Without it, the respondent would be unable to determine what the applicant’s needs are until after attendant care services are provided and a claim for reimbursement is made. This is contrary to the process outlined in section 42(3) of the Schedule where the respondent is given the opportunity to agree or refuse to pay the amount submitted in a Form 1 or to request an insurer’s examination pursuant to section 42(4).
17I find the respondent’s refusal to pay ACBs prior to the receipt of a Form 1 is in accordance with section 42(5). The respondent has advised the applicant that it will not consider ACB expenses prior to the submission of a Form 1.
18Considering the applicant’s claim for ACBs is for a period ending September 30, 2016 and a Form 1 has not yet been submitted, the applicant is disentitled from claiming ACBs.
NEXT STEPS
19While the applicant is disentitled from claiming NEBs prior to July 9, 2019 and ACBs altogether, the applicant is permitted to claim entitlement to the NEBs following this date. However, the issue of entitlement to NEBs as of July 9, 2019 is not before me and will therefore have to be addressed in a separate hearing. The parties will attend a case conference following the release of this preliminary issue decision to address the timeline to exchange evidence, if necessary, and for any other procedural or case management purposes which may arise. The Tribunal will schedule the case conference as soon as reasonably possible in order to address these matters.
CONCLUSION & ORDER
20The applicant is not entitled to any NEBs prior to July 9, 2019.
21The applicant is not entitled to any ACBs.
22The Tribunal will schedule a case conference for this matter as soon as reasonably possible.
Released: December 18, 2019
Brian Norris
Adjudicator