Tribunal File Number: 18-003574/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:
G. A.
Appellant
and
Allstate Insurance Company of Canada
Respondent
DECISION
PANEL:
Thérèse Reilly, Adjudicator
APPEARANCES:
For the Appellant:
Carlos Ortiz, Paralegal
For the Respondent:
Jennifer Griffiths, Counsel
Heard:
In Writing: May 9, 2019
OVERVIEW
1The applicant was involved in an automobile accident on November 13, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant maintains she is entitled to apply for an attendant care benefit. The respondent maintains the applicant did not apply and is not entitled to apply for the attendant care benefit (“ACB”) as the appropriate documentation and forms required by the Schedule were not submitted.
2The respondent brings a preliminary issue (PI) to determine whether the applicant is entitled to apply for an attendant care benefit. On consent, and as set out in the case conference Order of August 21, 2018, the parties agreed that the issue of entitlement to the attendant care benefit and the entitlement to the OCF 18 for an in-home assessment in the amount of $2,486.00 will be determined at a hearing to be scheduled after the release of the decision on PI.
ISSUE
3The following is the preliminary issue set out in the case conference Order dated August 21, 2018:
- Has the applicant applied for the attendant care benefit in the amount of $8,160.00 per month from November 13, 2015 to date and ongoing pursuant to the Schedule and if not, is the applicant entitled to make such a claim?
RESULT
4For the reasons set out below, I find that the applicant has not followed the requirements set out in section 42(1) of the Schedule and as such her application for an ACB is not complete. However, this is a procedural technical argument and is part of the defence of the respondent. The applicant has the right to continue with her application for an ACB despite the incomplete application which is better dealt with by the hearing adjudicator who will conduct a hearing on the issue of entitlement and quantum and any potential suspension of payment obligations due to the technical non-compliance issue with section 42. As such, I defer the decision on the matter to the hearing adjudicator.
THE LAW
5Section 42(1) and (2) of the Schedule sets out the requirements to apply for an attendant care benefit and identifies the documents required to apply for the ACB. Section 42(1) states the application for an ACB must be in the form of and contain the information required to be provided in a document called an "Assessment of Attendant Care Needs" (the “Form 1”). The Form 1 must be prepared and submitted to the respondent by an occupational therapist or a registered nurse.
6Section 19(2) states that the amount of an attendant care benefit is determined in accordance with the version of the "Assessment of Attendant Care Needs" (the Form 1) that is required to be submitted under section 42.
7Section 42 (5) states the insurer may, but is not required to, pay an expense incurred before an assessment of attendant care needs that complies under section 42 is submitted to the insurer.
ANALYSIS
8The respondent denies the applicant applied for the benefit as she did not submit a Form 1.
9The applicant states with respect to its claim for an ACB that:
a) she submitted an OCF-18 dated April 23, 2016 in the amount of $2,486.00 seeking an in-home assessment.
b) the OCF-18 shows a need for attendant care and services which were provided by the applicant’s husband.
c) Expense Claim Forms (OCF-6s) were submitted for expenses relating to cleaning services, helping the applicant with bath and toiletry, cooking meals and providing transportation to medical appointments, all provided by the applicant’s husband; and,
d) the respondent’s Notice of Examination when it scheduled section 44 examinations to assess whether the OCF 18 was reasonable or necessary failed to provide to provide medical or other reasons for the examinations and therefore the respondent unreasonably withheld payment of the benefit. The expense is thus deemed incurred pursuant to section 3(8) of the Schedule.
10I find the arguments raised by the applicant are relevant to the issue of entitlement and quantum which are not issues in this proceeding. However, I find the issue of whether the applicant applied for an ACB is a procedural technical argument and would form part of the respondent’s defence to the ACB claim. The respondent argues a Form 1 is required and none was submitted and thus she is not entitled to apply. I find however, that this argument ignores the findings in LAT and court cases that applicant’s have been allowed to file a retroactive Form 1 and that is not a bar to an ACB claim. Section 42 (1) does require the use of a Form 1 which sets out required information necessary to assist the respondent in quantifying an ACB and identify the services being provided. However, I note, neither party filed submissions that the Tribunal has allowed a party to make a claim for an ACB based on a retroactive Form 1.1
11In conclusion, it is my finding that the applicant’s application for an ACB is incomplete however the applicant has the right to continue with her application for an ACB despite the incomplete application which is better dealt with by the hearing adjudicator who will conduct a hearing on the issue of entitlement and quantum and any potential suspension of payment obligations due to the technical non-compliance issue with section 42. As such, I defer the decision on this compliance technical argument to the hearing adjudicator.
Released: August 15, 2019
Thérèse Reilly
Adjudicator
Footnotes
- 18-000790 v Jevco Insurance Company, 2019 CanLII 22200 (ON LAT)