September 06, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
DECISION ON PRELIMINARY ISSUES
Heard Before: Suesan Alves, Arbitrator
Date of Decision: June 13, 2014
Ms. Beltrame, 69, was injured in an accident on July 2, 2009. She was standing with both feet on a streetcar step, waiting to pay her fare, when the driver simultaneously began moving the streetcar forward and closing the street car doors. The doors pushed her and she fell backwards striking her head on the pavement. She was assisted by others, then re-boarded the streetcar and continued on her trip. On noting a grapefruit sized bump on her head she spoke to the driver who contacted a TTC supervisor. She was sent to hospital by ambulance. At the hospital, Ms. Beltrame was given a head injury routine. Her family physician diagnosed her injuries and impairments as concussion, without loss of consciousness; anxiety; sleep disorder; injuries of her neck and shoulders; headaches and dizziness.
In this arbitration she claims non-earner benefits as well as medical, attendant care, cost of examinations, and housekeeping and home maintenance benefits from Dominion of Canada General Insurance Company payable under the Schedule. Initially she was unrepresented in her claims.
Dominion submits that Ms. Beltrame is precluded from proceeding to arbitration with her claim for non-earner benefits because she did not submit a disability certificate stating that she suffered a complete inability to carry on a normal life within 104 weeks of the accident.
Ms. Beltrame disagrees. She submits that Dominion failed to assist her in claiming statutory accident benefits because it failed to arrange a neuropsychological insurer examination under section 42 of the Schedule. She submits that through her present counsel, she has obtained neuropsychological reports which establish her entitlement to non-earner benefits.
Dominion disagrees that these reports establish such entitlement. Both parties seek their expenses of this hearing.
The preliminary issues are:
Is Ms. Beltrame precluded from proceeding to arbitration with her claim for non-earner benefits because she did not submit a disability certificate stating that she suffered a complete inability to carry on a normal life within 104 weeks of the accident?
Did Dominion owe Ms. Beltrame a duty to arrange a neuropsychological insurer examination in relation to her claims for non-earner benefits?
Ms. Beltrame is not precluded from proceeding to arbitration with her claim for non-earner benefits.
Dominion should have arranged a neuropsychological insurer examination of Ms. Beltrame in relation to her claim for non-earner benefits.
This arbitration raises two sets of interrelated questions:
The first set deals with whether Ms. Beltrame applied for a non-earner benefit; whether Dominion denied her claim for those benefits; and whether her claim for non-earner benefits is out of time.
The second set deals with whether, as a first party insurer, Dominion was obliged to arrange a neuropsychological insurer examination as part of a complete investigation and in order to assist Ms. Beltrame in applying for benefits. Answering these questions involves a consideration of the parties’ obligations under the Schedule and at common law.
The Arbitrator found that Ms. Beltrame provided sufficient information to Dominion that it could begin adjusting the file. Arbitrator Alvez found Dominion failed to respond to Ms. Beltrame’s non-earner benefit claim in December 2009, and thus delayed crystallizing the dispute concerning her entitlement to that benefit. I also find that Dominion denied Ms. Beltrame’s non-earner benefit in June 2011. The Arbitrator found that her applications for mediation and arbitration were timely and conclude that Ms. Beltrame can proceed with her claim for non-earner benefits.
The non-earner benefit claim
On October 2, 2009, after receiving Ms. Beltrame’s Application for Accident Benefits (OCF-1), and a disability certificate (OCF-3), Dominion identified non-earner and housekeeping benefits as some of the benefits to which Ms. Beltrame may be entitled. Subsection 35(1) of the Schedule designates these as “specified benefits” and subsection 35(2) requires a claimant of a specified benefit to submit a disability certificate, with the Application for Accident benefits.
Dominion asked Ms. Beltrame to provide OCF-3s on July 27, 2009, December 2, 2009, and on April 28, 2011. On each occasion, Ms. Beltrame completed her portion of the OCF-3s, signed the forms and took them to her family physician for his completion. On three occasions, her family physician completed the OCF-3s to indicate that she met the test for housekeeping benefits due to headaches and dizziness. However, her family physician indicated that she did not meet the test for non-earner benefits on two occasions, and on a third, he indicated that the test was not applicable to Ms. Beltrame.
Section 1 of the Schedule defines a disability certificate. The Arbitrator found that the OCF-3s submitted were not disability certificates in relation to her claim for non-earner benefits because while the OCF-3s described the cause and nature of her impairments, and provided an estimate of the duration of the disability in relation to her claim for housekeeping benefits on two occasions, they did not provide an estimate of the duration of disability in relation to non-earner benefits.
Dominion submits that because the disability certificates did not establish that Ms. Beltrame met the test for non-earner benefits, she failed to apply for the non-earner benefit.
The Arbitrator reviewed the caselaw and determined that it mandates an additional inquiry in relation to the question of whether an insured person applied for a benefit. In this case, the Arbitrator found the additional information the Applicant provided to Dominion is reflected in the claims examiner’s notes which were filed at the hearing. Those notes reflect fulsome discussions between Ms. Beltrame and the claims examiner with respect to the circumstances of the accident, her injuries, her concerns and pending investigations and referrals by her family physician. The Arbitrator found that Ms. Beltrame provided sufficient information that Dominion was able to identify that she might be entitled to a non-earner benefit and to ask her to provide disability certificates in relation to this benefit. Since the disability certificates her physician provided did not show that Ms. Beltrame met the qualifications for the benefit, Dominion also had sufficient information to deny the benefit.
Based on the documentation filed at this hearing, the Arbitrator found Dominion failed to respond to Ms. Beltrame’s non-earner benefit claim as required under the Schedule with respect to the OCF-3 submitted in December 2009. Thus, Dominion delayed crystallizing the dispute concerning Ms. Beltrame’s entitlement to non-earner benefits until June 8. 2011.
When Dominion denied the claim for non-earner benefits, it sent her a covering letter as well as an OCF-9, an Explanation of Benefits. Both documents stated that if she disagreed with Dominion’s assessment of her claim, she could apply for mediation and arbitration or mediation and court. Dominion provided Ms. Beltrame with the information on the dispute resolution process when it denies a benefit.
In denying the benefit Dominion triggered the running of a limitation period under section 51 of the Schedule. The Arbitrator found Ms. Beltrame applied for mediation and arbitration within the required time frames following Dominion’s denial. Dominion did not object to her application for mediation or object to the arbitration application in its Response. It was at the arbitration pre-hearing that Dominion first took the position that she failed to apply for the non-earner benefit and for that reason could not proceed to arbitrate the claim.
The Arbitrator rejected Dominion’s submission that Ms. Beltrame was required to make a further application for the non-earner benefit, and also rejected the submission that she could only apply for the non-earner benefit within 104 weeks of the accident. Section 31 of the Schedule expressly permits late notification and late applications where the claimant has a reasonable explanation.
Dominion did not respond to the December 2009 OCF-3, and effectively delayed the crystallization of the dispute in relation to her non-earner benefits until June 2011. This delay, coupled with Dominion’s failure to arrange a neuropsychological evaluation, provide Ms. Beltrame with a reasonable explanation for the delay in providing evidence which she submits establishes her entitlement to the non-earner benefit.
Was Dominion obliged to arrange a neuropsychological IE?
The first party insurer’s duty of good faith is part of its common law obligations. The caselaw establishes that as part of its duty of good faith, an insurer has an obligation to deal with its insured’s claim fairly, and to carry out a proper investigation of a claim, and to carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner. An insurer is also required to identify information needed which would assist in assessing the claim properly. The caselaw also establishes that a first party insurer is obliged to prefer the claimant’s interests at least as much as its own.
Dominion informed Ms. Beltrame that it would assess her entitlement to the non-earner benefit closer to the 26 week mark, which it calculated to be January 8, 2010. As that date approached Dominion had had many fulsome discussions with Ms. Beltrame and knew the complete circumstances of the accident, her injuries and her ongoing symptoms, and of her pre-accident history of a brain tumor. Knowing all this Dominion did not arrange a neuropsychological examination of Ms. Beltrame.
The Arbitrator found that:
A claims examiner of sound and moderate judgement would appreciate that a traumatic brain injury may give rise to cognitive, emotional and behavioural impairments, which may impact on an insured person’s need for statutory accident benefits, and that the input of experts would be required in order to assess Ms. Beltrame’s entitlement to benefits.
A claims examiner of sound and moderate judgment who intended a thorough investigation of her head injury and who knew the circumstances of Ms. Beltrame’s injury, her symptoms, complaints and concerns, and who was alerted to a pre-existing brain tumor, would appreciate that she required the input of a neuropsychologist to address Ms. Beltrame’s entitlement to statutory accident benefits identified by the claims examiner on October 9, 2009.
A claims examiner of sound and moderate judgment would appreciate that Dominion needed an opinion on whether Ms. Beltrame sustained a traumatic brain injury; the role if any of her pre-accident brain tumour, whether anxiety was a feature of a brain injury or due to other causes; whether her headaches and dizziness which prevented her from doing her housekeeping stemmed from a traumatic brain injury and if so whether there were treatment recommendations and strategies to assist her, in addition to paying her housekeeping benefits and any physiotherapy or chiropractic treatment.
Dominion should have known that there was a particular time sensitivity involved in arranging a neuropsychological exam in relation to Ms. Beltrame’s entitlement to non-earner benefits at the 26 week mark, since that is when Dominion would be required to pay those benefits, if Ms. Beltrame could establish that she met the qualifications for the benefit. Such an examination would be in Ms. Beltrame’s interest. In the Arbitrator’s view, it would also be in Dominion’s interest. If the neuropsychologist opined that Ms. Beltrame sustained a traumatic brain injury, he or she could provide Dominion with a basis to pay legitimate benefit claims and an appropriate focus of rehabilitation. If the examiner opined that she did not sustain a traumatic brain injury, it could also assist Dominion in limiting its exposure.
For these reasons the Arbitrator concluded that Dominion should have arranged a neuropsychological examination as part of a proper investigation.