Insurer did not send insured accident benefit forms promptly.

January 01, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: June 30, 2015

Heard Before: Adjudicator Marcel Mongeon

REASONS FOR DECISION

Issues:

Jerry Brentnell was injured in a car accident on October 9, 2010. While waiting for a red light to change his pick-up truck was rear-ended, and in turn, Mr. Brentnell’s vehicle was forced into the rear end of the vehicle in front of him. He was able to exit his truck to check the driver in front of him, ask for police to be called, and then he re-entered his truck. Police attended, and Mr. Brentnell continued on his way. He began to feel unwell that day, went to hospital the following day where he was diagnosed with whiplash.  He sought accident benefits from Wawanesa, however, the parties were unable to resolve their disputes through mediation, and Mr. Brentnell applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Mr. Brentnell’s application for accident benefits outside of the time limits provided for in the Schedule?

2. Is Mr. Brentnell entitled to an Income Replacement Benefit (IRBs) as a result of the accident and, if so, from what date and in what amounts?

3. Is Mr. Brentnell entitled to the reimbursement of $280.00 in medical and rehabilitation expenses paid to CBI Heath as a result of the accident?

4. Is Mr. Brentnell entitled to a Special Award pursuant to subsection 282(10) of the Insurance Act because the Insurer unreasonably withheld or delayed payments to Mr. Brentnell?

Result:

1. Mr. Brentnell’s application for accident benefits is not outside of the time limits.

2. Mr. Brentnell is not entitled to an Income Replacement Benefit.

3. Mr. Brentnell is not entitled to reimbursement for medical and rehabilitation expenses.

4. Mr. Brentnell is not entitled to a Special Award.

EVIDENCE AND ANALYSIS:

Mr. Brentnell returned to his work as a truck driver a couple of days later. He enjoys his work. As a truck driver delivering paving stones his employer indicates the position requires the ability to drive and unload the bricks with a boom, and to secure the load. He was a long term employee with one WSIB claim resulting from a fall at work and significant neurological injury.

Mr. Brentnell lives part time in New Brunswick with his wife and during the working season he lives in Ontario. While on winter lay off he seeks EI benefits. Each spring he calls the employer and returns to work. Following his accident, he worked continuously from just after the accident until December 3, 2010. He received notice that he was being laid off due to a seasonal lack of work. He returned to New Brunswick.  His residence in New Brunswick, while working in Ontario, also created a layer of complexity with respect to his claim for accident benefits.

Because Mr. Brentnell’s pick-up truck was insured at his New Brunswick address, after the accident in Erin, Ontario, on October 9, he telephoned his insurance company in New Brunswick and began his insurance claim by calling his broker eventually speaking with a telephone claims adjuster from Wawanesa.  The adjuster noted that “He did sustain injury to the base of his neck. He went to the Milton Hospital Emergency Room the following day. He has whiplash type injury. He is just taking Tylenol. He does have private coverage thru [sic] London Life thru [sic] work. He does have good coverage. He does not believe he will have any expenses to submit.”

Mr. Brentnell faxed Ms. Garwood two pages of notes that show fax clock at the top of the two pages, 10/16/2018 at 09:15, consistent with having faxed this material the day after their conversation on October 15, 2010.  On page 2 of those notes, Mr. Brentnell wrote: “I went to the hospital on Oct 9, 10 12:45 pm Milton Ont complaining of lower neck pain. Doctor examined me, had X-rays done of my neck. She said I had whiplash. I am taking Tylenol to control pain. I drive transport and need to work!”

The adjuster did not refer Mr. Brentnell to an accident benefits (or similar) adjuster. In New Brunswick – which is where the adjuster was located – accident benefits are referred to as Schedule B Benefits. On cross-examination, the adjuster admitted having little training in New Brunswick Schedule B Benefits and no training at all in Ontario accident benefits. The adjuster’s testimony was to the effect that her normal practice when speaking to a claimant is to only send them the accident benefits package if the claimant indicates they are off work or have medical expenses, and to refer such claimants to the Schedule B Unit for further processing. The adjuster did not send Mr. Brentnell information about his entitlement to accident benefits under either the New Brunswick or Ontario schemes, admitting on cross-examination, that it was common for claimants not to know what their accident benefits entitlements are.

The adjuster quickly adjusted Mr. Brentnell’s property claim, assigning an appraiser out of Hamilton to look at his vehicle and by December, Mr. Brentnell and the Insurer agreed to a cash settlement. Because his pick-up was driveable, Mr. Brentnell was able to drive his vehicle back to New Brunswick when he was laid off in December and had it fixed there.  When Mr. Brentnell returned to New Brunswick, he applied for and received, Employment Insurance Benefits on the basis of his work.

In the springtime, as was his custom, Mr. Brentnell telephoned his contact to ask about work for the 2011 season, but was advised that due to a shortage of work there was no job for him. He then sought other work in Ontario but was not successful. Eventually he found part time work in New Brunswick driving a dump truck on a temporary basis.

The tribunal had Mr. Brentnell’s income tax records. The tribunal was also advised that during this same period Mr. Brentnell had a great deal of turmoil in his family life as his wife was being treated for cancer. He was eventually advised by a friend to look into accident benefits.

Mr. Brentnell contacted the Insurer again on March 12, 2012, and the New Brunswick Section B Benefits were explained and appropriate forms were sent. In addition, an election between the New Brunswick and Ontario regimes was sent to Mr. Brentnell and he elected the Ontario regime.  Carriage of the file for the Insurer was transferred to ProFormance in Ontario. The OCF-1, commencing Mr. Brentnell’s accident benefit claim was dated March 30, 2012, and received on April 5, 2012.  On October 2, 2012, ProFormance, on behalf of the Insurer, denied the claim with an “Explanation of Benefits Claimed” form.

The Insurer objects to any claims for accident or medical benefits being arbitrated on the basis that Mr. Brentnell did not apply in the timely manner required by subsection the Schedule.  However, the onus of proof is on the Insurer to show that the Applicant is out of time.

In this case, a reasonable consideration of the facts establishes that Mr. Brentnell advised the Insurer that he thought that he had some type of injury within a few days of the accident. This can be considered to have occurred either in the telephone call with his broker (which we have no document of), the telephone call with the Insurance Adjuster (which took place on October 15) or in the fax notes he sent (on October 16). Mr. Brentnell clearly advised the Insurer that he was told that he had whiplash. Although Mr. Brentnell indicated in the conversation with the Insurance Adjuster he didn’t think he would have any expenses, this cannot be interpreted as meaning that he did not think he had a claim.

The most reasonable characterization of Mr. Brentnell’s communication is: I was told I have whiplash. I really don’t know if this entitles me to anything. I expect you (the Insurer) to tell me what I should do.  Mr. Brentnell’s faxed note makes it clear about work: “I need to work!”  Mr. Brentnell did comply with subsection 32(1) by advising the Insurer within the 7 days of the relevant facts.

The Arbitrator considered the facts of the case and the law and determined the Insurer failed Mr. Brentnell in not sending him the accident benefits information required pursuant to subsection 32(2) of the Schedule until he finally had the March 2012 conversation. Because of the failure, until contacted again in 2012, to provide the accident benefits information, it cannot be considered that the Insurer acted “promptly” as required.  The Arbitrator found the application was filed in a timely manner.

Upon reviewing the medical evidence at length the Arbitrator determined that it is highly unlikely that Mr. Brentwell sustained further neurological damage due to this accident.

The Arbitrator then turned to IRBs and determined that the onus of proof is on the Applicant to prove his entitlement to Income Replacement Benefits under the Schedule. The Arbitrator determined that Mr. Brentwell did not present any evidence that he is unable to perform any of the tasks essential to his job.

Mr. Brentwell made a claim for a modest amount of Medical or Rehabilitation Benefits under Part III of the Schedule. He did not discharge his onus of showing that he had an impairment that was directly caused by the accident. Accordingly, no medical benefit is payable.

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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.