Insurer cannot deduct ODSP payments from non-earner benefits

May 17, 2013, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before:   Suesan Alves

Date of Decision: December 11, 2012

Issues:

Stanley Anglin, was injured in a motor vehicle accident on June 14, 2008. In this arbitration he claimed non-earner and other benefits from State Farm under the Schedule. At the time of the accident Mr. Anglin was a recipient of a monthly benefit under the Ontario Disability Support Program, (an “ODSP benefit”). State Farm submits that it is entitled to deduct Mr. Anglin’s ODSP benefit from the amount of his non-earner benefit, by paragraph 1 of subsection 60(1) of the Schedule. Mr. Anglin disagrees.

For the reasons which follow, the Arbitrator found that State Farm is obliged to pay Mr. Anglin the full amount of his non-earner benefit.

The preliminary issue is:

1. Is Mr. Anglin’s Ontario Disability Support Program benefit deductible from his non- earner benefit?
2. Which party is liable to pay the other’s expenses of this hearing?

Result:

1. Mr. Anglin’s Ontario Disability Support Program benefit is not deductible from his non- earner benefit.
2. If the parties are unable to agree on expenses, a party shall within thirty days request an appointment before an adjudicator to determine expenses, pursuant to Rule 79 of the Dispute Resolution Practice Code—Fourth Edition, Updated August 2011.

EVIDENCE AND ANALYSIS:

Mr. Anglin was injured in a motor vehicle accident on June 14, 2008. He applied for arbitration and claimed non-earner benefits, along with other relief.  At the time of the accident, Mr. Anglin was receiving an ODSP benefit. State Farm submits that it is entitled to deduct the amount of Mr. Anglin’s ODSP benefit from the amount of any non-earner benefit payable as a result of the motor vehicle accident on June 14, 2008.

State Farm submits that Mr. Anglin’s ODSP benefit is a collateral benefit within the meaning of section 60 of the Schedule, as it is a “temporary disability benefit being received by the insured person in respect of a period following the accident and in respect of an impairment that occurred before the accident”, as described in paragraph 1 of subsection 60(1) of the Schedule.

State Farm submits that Mr. Anglin will be doubly compensated if it is not permitted to deduct the ODSP benefit, because the non-earner benefit is not considered income by the Ministry of Community and Social Services, and Mr. Anglin would be in a position to receive both the ODSP benefit as well as the non-earner benefit payable under the Schedule.

The Arbitrator found State Farm’s submission with respect to double compensation is inaccurate, misstates the law, and ignores the legislative scheme.

The Legislature has enacted a specific provision in the Schedule which governs the issue raised by State Farm. The ODSP benefit is a benefit administered by the Ministry of Community and Social Services for Ontario.  Section 58 of the Schedule requires insurers to pay benefits under the Schedule despite the fact that the claimant is a recipient of benefits under an Act administered by the Ministry of Community and Social Services.

Subsection 58(1) of the Schedule states that: “The insurer shall pay benefits under this Regulation even though the insured person is entitled to, or has received, benefits under an Act administered by the Ministry of Community and Social Services for Ontario or under similar legislation in another jurisdiction.”

Double compensation is entirely avoided by the legislative scheme created by subsection 58(1) of the Schedule; the provisions of the Ontario Disability Support Program Act, 1997, S.O. 1990 c. 25; and by O.Reg. 222/98, the General Regulation made pursuant to that Act. Subsections 43(1) and (3) of O. Reg. 222/98 specifically require the inclusion in income of non-earner benefits paid under the Schedule for purposes of determining the amount of Mr. Anglin’s  ODSP benefit. The Ministry of Community and Social Services subtracts the amount of the non-earner benefit from his ODSP benefit.

The Ministry of Community and Social Services required Mr. Anglin to sign an Agreement to Reimburse as well as an Assignment, Authorization and Direction which permitted the Ministry to be reimbursed out of money that is considered income under the Act and that may be coming to him from State Farm Mutual Automobile Insurance Company, pursuant to section 8 of the Ontario

Disability Support Program Act, 1997. Mr. Anglin was required to sign those documents as a condition of being provided with an ODSP benefit.  The Ministry of Community and Social Services sent the documents which Mr. Anglin signed to his counsel, who in turn filed them at this hearing.

For ease of reference, the applicable provisions of O.Reg. 222/98  are set out below:

OTHER EXEMPTIONS

43. (1)  The following shall not be included in income:

…

4. Subject to subsections (2), (3) and (5), an amount received as damages or compensation for,

i.  pain and suffering as a result of injury to or the death of a member of the benefit unit, or

ii. expenses actually and reasonably incurred or to be incurred as a result of injury to or the death of a member of the benefit unit.

…

(3) The exemption under paragraph 4 of subsection (1) does not apply to amounts paid under the following provisions:

1.   Subsections 13 (1), (2), (3), (7) and (8) of Regulation 672 of the Revised Regulations of Ontario 1990 (Statutory Accident Benefits Schedule — Accidents before January

1, 1994) made under the Insurance Act.

2.   Section 19 of Ontario Regulation 776/93 (Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996) made under the Insurance Act.

3.   Section 12 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule —

Accidents on or after November 1, 1996) made under the Insurance Act.

4.   Section 12 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule —

Effective September 1, 2010) made under the Insurance Act. O. Reg. 209/10, s. 4 (3, 4).

The Ontario Disability Support Program interprets the payment of non-earner benefits in the above fashion.  The following directive on its website states:

Income Support Directives 5.1 - Definition and Treatment of Income

Automobile Insurance Accident Benefits

Not exempt and charged as income at 100%:

•             Income replacement benefits

•             Non-earner benefits.

For these reasons, the Arbitrator was not persuaded that State Farm has discharged its burden of establishing that it is entitled to deduct the amount of Mr. Anglin’s ODSP benefit from his non-earner benefit. State Farm must therefore pay Mr. Anglin the full amount of any non-earner benefits to which he is entitled.

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.