ACCIDENT BENEFITS NEWSLETTER - AUGUST 2004

Catherine Zingg

Effective September 1st, 2004, a SABS representative who has been convicted of a Criminal Code offence listed in the regulation ( a Table is attached), will not be entitled to represent a SABS claimant unless a pardon has been granted or issued under the Criminal Records Act (Canada).

Insurers “will be expected to make reasonable allowances for claimants who find themselves without an advocate as a result of these changes”. The Bulletin also reminds insurers that “information concerning any paralegal acting in violation of the regulations should be reported to FSCO in accordance with the procedures outlined in Superintendent’s Bulletin A-18/03 (Filing a Complaint about a Paralegal).”

General Insurance Company and Antony, P03-00023, July 22nd, /04, Director’s Delegate Makepeace upheld the arbitrator’s decision that RBC could not hold Ms. Antony to her initial election because it failed to provide sufficient information. Ms. Antony’s appeal from the arbitrator’s second decision, which held that Ms. Antony was not entitled to change her election as of right, if he was wrong in finding her first election was invalid, was dismissed.

Section 61 of the SABS-94 was the predecessor to s.36 of the SABS-96. Director’s Delegate Makepeace noted that the “explicit irrevocability language of s.61(7)” was omitted from s.36 of the SABS-/96. In finding that Ms. Antony was entitled to re-elect, she stated:

If an insured person is entitled to elect amongst the weekly benefits for which she qualifies, it follows that she is entitled to change her mind, absent statutory language to the contrary. This does not mean the claims process is entirely open-ended. Time limits are proscribed for each step in the process, and the SABS prescribes the consequences of non-compliance. The insurer must give notice of election within 14 days of receiving the insured person’s application for accident benefits, and the insured person must make her election within 30 days of receiving the insurer’s notice.

If the right to re-elect is implicit in the right to elect, it follows that the same 30-day time limit applies to re-elections. Ms. Antony purported to re-elect about three months after her initial election. If RBC is prejudiced, it is prejudiced by her delay, not her re-election. Pursuant to s.31, Ms. Antony is not disentitled from re-electing IRBs if she has “a reasonable explanation” for failing to comply with a time limit under Part X of the SABS. This decision requires consideration of a number of factors, including how much time passed between the initial election and purported re-election, the reasons for the delay, the insured person’s reason for seeking to re-elect, the effect of re-election on the amount and duration of benefits, and whether re-election would prejudice the insurer’s ability to investigate and assess the claim (pp.10 - 11).

The Director’s Delegate noted that arbitrators have applied Smith v. Co-operators General Insurance Company, (2002) S.C.R. 129, to s.32 cases, finding that an insurer will not be able to rely upon the 30-day time limit for submitting an application for benefits unless it has given notice of the time limit and the consequences of non-compliance (p.16). Applying the same reasoning, the Director’s Delegate found, “suggests that an insured person must be advised that an insured person must be advised about the consequences of an election, including any irrevocable elections”(p.16). The arbitrator had found that the insurer was obliged to advise Ms. Antony that the higher benefit may not be the longer-lasting one. Director’s Delegate Makepeace found that the arbitrator had dealt decisively and correctly with this key issue. Acknowledging that insurers handle a high volume of claims, the Director’s Delegate agreed with RBC that insurers are not required to recommend an election based on a full enquiry into the claimant’s impairments and financial and personal situation. However, insurers must “explain the rules well enough to allow an unsophisticated insured person (and her representative, if she has one) to decide which benefit is best for her”(p.17).

In Phan and Economical, A03-001311, June 11, 2004 Arbitrator Sone held that the applicant could not proceed to arbitration with respect to her entitlement to medical benefits for physiothereapy and massage. It was found that FSCO did not have jurisdiction to mediate the issues pursuant to s.50(c) of the Schedule.

Ms. Phan was in a motor vehicle accident on November 13, 2001. She attended at the Keele & Finch Rehabilitation Centre on Nov. 14, /01. Economical received an initial report from the Centre on Nov. 28, /01. Other treatment plans were submitted before an Application for Benefits was eventually made on January 14, /02. On the same date Economical advised Ms. Phan by letter that the treatment plans were not approved and requested a DAC. An OCF-14 was sent as well, with a request that it be returned within 14 days.

After an Application for Arbitration had been made and a pre-hearing held, Ms. Phan provided a signed OCF-14 28 months after the proposed treatment plan and after she had been involved in a second accident, in which she suffered similar injuries to those sustained in the first accident. No explanation was provided to explain the delay.

A signed OCF-14 enables an insurer to provide the DAC with the applicant’s health information and allows the DAC to consult with the Applicant’s treating health professionals if necessary. Arbitrator Sone found that the 28 month delay was unreasonable and made the DAC process unworkable. Accordingly, Ms. Phan was not permitted to proceed with her case.

In Wilson and Liberty Mutual Insurance Company, P-04-00007, July 2, 2004 Director Draper dismissed Mrs. Wilson’s appeal of an arbitration decision which held that Mrs. Wilson had the mental capacity to conduct her own case and that the proper role for Ms. Carolyne Champaigne was as a witness. On appeal, Mrs. Wilson argued that Ms. Champaigne should be allowed to participate as her “facilitator” in the arbitration process. It was further submitted that the Arbitrator had violated her rights under the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code.

In support of her case, Mrs. Wilson had submitted a letter from Dr. James Deacon, who supported the use of a facilitator. Director Draper commented:

In my view, this letter does not address the hard questions. Ms. Champaigne’s involvement is not a neutral step that might help, but can do no harm. First, Dr. Deacon does not comment on the view held by other medical practitioners that Mrs. Wilson’s recovery is being impeded by her belief, which they regard as sincerely held but incorrect, that she suffers from a brain injury - a belief that is supported by members of the Sudbury & District Brain Injury Association and Ms. Champaigne, who met Mrs. Wilson through a common acquaintance involved in this organization (p.10).

It was open to Ms. Champaigne to become Mrs. Wilson’s representative, but she would be required to comply with the responsibilities that go with the role, such as filing with the Commission. In dismissing the Appeal, the Director found that the arbitrator had acted within his authority and had not made an error in law. Mrs. Wilson was ordered to pay Economical $250 in costs. Economical had requested $2,000, but the Director found that Mrs. Wilson raised a novel issue.