Benefit Cannot Be Denied Before It is Applied For

May 05, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M.R. v Aviva
LAT File: 16-000216/AABS

Entitlement to Benefits: When does clock begin; what constitutes application for benefits; attendant care benefits; what constitutes denial of benefits; claim for benefits cannot be denied before it is applied for

Date of Decision: October 5, 2016
Heard Before: Adjudicator J.R. Richards

OVERVIEW

M. R. was injured in a car accident on December 6, 2013. She applied for Accident Benefits (OCF-1) to Aviva on February 11, 2014, approximately two months after the accident. Aviva responded to M. R.’s Application in Explanation of Benefit, informing her that she would be treated under the Minor Injury Guideline (MIG), and did not qualify for attendant care benefits. It is Aviva’s position that these letters are valid denials of M. R.’s application for attendant care benefits.

Aviva alleges that M. R. is barred from bringing her attendant care benefits claim to the Tribunal as it denied her attendant care claim as early as February 18, 2014 and she did not apply to the Tribunal to dispute the denial until May 6, 2016, outside the two-year limitation period, pursuant to Schedule.

M. R. states that she did not claim attendant care benefits at any point prior to March 12, 2016 when she underwent an Assessment of Attendant Care Needs. She then applied for attendant care benefits, which Aviva refused to pay. M. R. applied to the LAT on May 6, 2016 disputing Aviva’s refusal. She asserts that Aviva cannot deny a benefit prior to her application for that benefit.

DECISION

For the following reasons the Arbitrator found that M. R. is not barred from bringing her claim to the Tribunal: as Aviva cannot deny a benefit for which M. R. did not apply; and Aviva’s Explanations of Benefits are not valid denials.

The Arbitrator reviewed the law in the case and determined that the SABs provides a comprehensive framework for an application for attendant care benefits. The section states that an application for attendant care benefits for an insured person must be on a form entitled “Assessment of Attendant Care Needs”. The form must be prepared by and submitted to the insurer by an occupational therapist or a registered nurse. Once it has received the approved form, an insurer is required to give the insured person notice that specifies what expenses the insurer agrees to pay or refuses to pay and the medical reasons for the insurer’s decision. Mediation, evaluation and court / arbitration should commence within two years after the insurer’s refusal to pay the benefit.

The Arbitrator considered Aviva’s denial of the benefit prior to application and found that in M. R.’s case the limitation period did not begin to run under the Act and the Schedule when Aviva sent her Explanations of Benefits on February 18, 2014, March 4, 2014, April 29, 2014 and May 6, 2014. The OCF-1 form that M. R. submitted to Aviva on February 11, 2014 is a general application. The form asks a broad range of questions concerning an applicant’s living and family arrangements, employment status and medical condition, among other categories. The OCF-1 is not an Assessment of Attendant Care Needs.

In response to M. R. submitting the OCF-1, Aviva responded with an Explanation of Benefits form (OCF-9). It is Aviva’s position that the February 18, 2014 Explanation of Benefits form triggered the limitation period regardless of whether M. R. was eligible, entitled to or had applied for attendant care benefits. In its view, it is irrelevant that M. R. did not submit an Assessment of Attendant Care Needs in February 2014. According to Aviva, she applied for Accident Benefits and Aviva denied the benefits, thereby triggering the limitation period.

The Arbitrator disagreed with Aviva and found that the Schedule requires an insured person apply for attendant care benefits in a very specific manner. The Schedule requires a specialized form completed by either an occupational therapist or a registered nurse. Given that this specialized form was not filled out, there were no attendant care benefits for Aviva to deny.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.