Insured Was Entitled to Change Her Election From Caregiver Benefits to Income Replacement Benefits

March 26, 2008, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator:  Fred Sampliner

Decision date:  September 21, 2007

Insured was injured in a car accident on December 23, 2005.  She applied for statutory accident benefts (SABs) from ING.  ING refused her request to switch her weekly caregiver benefit to income replacement benefits (IRBs)

Insured was employed as a personal support worker but developed pregency complications and went onto sick benefits for about four months prior to the car accident.  Her injures from the car accident were characterized as soft tissue injuries to her neck and low back sprain.  At the time of the arbitration the injuries had not subsided and continued to be a chronic condition.

It was agreed that ING provided Insured with a full explanation of the weekly benefits available to her prior to her initial election.  She initially elected to receive IRBs but then changed to caregiver benefits in March 2005 after she retained advice from legal counsel.  This change was accepted by ING.

Insured´s caregiver benefits declined over time.  The payment was reduced to $7.75 per week after a report from an insurer examiner.  As a result of her financial circumstances and ongoing pain complaints Insured re-evaluated her initial choice of caregiver benefits in the summer of 2006.  Her maternity benefits had expired in August, 2006 and she had made an unsuccessful attempt to resume her pre-accident employment duties.  In September 2006 her counsel sent a letter to ING requesting that her income election be converted to IRBs from caregiver benefits.  ING argued that the election was irrevocable.

The arbitrator noted that ING´s argument that Insured´s election was irrevocable was not supported by a plain reading of the SABs schedule.  The selection limited the insured to recieve one benefit at a time but did not directly state or imply that the insured would be limited to a single election.

The arbitrator noted that the decision in Anthony and RBC General Insurance supported the position that changes are allowed in certain circumstances.  The Anthony decision outlined the guiding factors in late elections:  time passed since the initial election; reasons for the delay; reasons for seeking re-election; the effect of the re-election; and prejudice to the insurer.

The arbtirator felt that Insured had a legitimate reason for wanting to make the change and that she promptly notified ING.  Her reason was her financial hardship as a result of the termination of maternity benefits and her failed attempt to return to work.  With respect to any prejudice to ING, the arbitrator noted that the Insured was not seeking an election that was retroactive to her initial selection of caregiver benefits, but rather commencing from when her counsel sent a letter to ING seeking the change to IRBs.  At that point ING could have requested an insurer examination but in this case ING did not take that step but maintained a denial.  An assessment would have provided ING with relevant data and professional opinion to adjust Insured's file from that point.

The Insured was entitled to elect income replacement benefits from September 2006.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Pain and Suffering

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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 or call us toll-free at 1-866-414-4878.

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.

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