Motions for Interim Benefits – The New DAC?

Posted February 1, 2007

Since March 1, 2006, claimants have been unable to access DACS to attempt to resolve denials of accident benefits. In the absence of DACS, claimants face a reduced number of approaches they can use to obtain payment of improperly denied benefits.

As it is critical to arrange timely access to recommended rehabilitation, it is important to use all available dispute resolution mechanisms to that end. After mediating denied benefits it may be appropriate to file for Arbitration and seek an Interim Order for payment of benefits while awaiting an Arbitration date.

ARBITRATION – MOTION FOR INTERIM BENEFITS:

Section 279 (1) (4.1) of the Insurance Act indicates: “279 (1) (4.1) Interim Orders – The Director and every Arbitrator appointed by the Director may make Interim Orders pending the Final Order in any matter before the Director or Arbitrator.”

CRITERIA:

There is some ambiguity arising from the prevailing arbitral decisions as to the criteria used by Arbitrators for granting or refusing Interim Orders; however, a majority of Arbitrators find that the Applicant must show urgency and must show a prima facie entitlement for the benefit in dispute for an Interim Order to be granted.Prima facie entitlement means that:

“The Applicant must produce evidence, which, if unanswered and believed is sufficient to render a reasonable conclusion in favor of entitlement.” Normally the evidence that can be used in a motion seeking an Interim Order for benefits should consist of:

  1. Affidavits from treating practitioners confirming the comments within the reports which relate to the benefits which are being sought and the effect of the denial of those benefits;
  2. An Affidavit from counsel setting out a relevant claims-handling chronology; as well as
  3. An Affidavit from the claimant setting out the urgency of the need.

The insurer has the right to cross-examine the deponents on their Affidavits and may compel deponents to attend for cross-examination at the hearing itself.

EFFECT OF INTERIM ORDER:

An Interim Order is not subject to Appeal and is binding upon the parties pending either settlement or the arbitration decision.

RECENT INTERIM ORDER – ATTENDANT CARE ENTITLEMENTS:

On a Motion for Interim Benefits in which the writer was counsel for the Applicant,Keyes and the Personal Insurance Company of Canada, the Applicant Jessica Keyes was successful in obtaining an Interim Order for payment of Attendant Care Benefits. The Applicant suffered catastrophic brain injuries as a result of a 2003 car accident.

As a result of the motion, the Arbitrator granted attendant care benefits based upon a Form 1 that had been prepared by a treating practitioner despite a more recent Attendant Care DAC which reduced attendant care benefits to $0.

Notwithstanding that an Attendant Care DAC had been completed, the Arbitrator found that the Applicant had met her responsibility to show urgency because of the potential danger to her safety if she did not receive the appropriate attendant care, and had demonstrated a prima facie case of entitlement to substantial attendant care benefits because:

  1. The DAC report left serious questions as to whether or not the DAC complied with Part IV of the Attendant Care DAC Assessment Guidelines;
  2. The DAC contained significant errors or attempts to mislead in consideration of Jessica Keyes’ pre-accident health; and
  3. The Arbitrator accepted as credible and authoritative the affidavit evidence of the treating occupational therapist concerning the ongoing need for and the amount of attendant care required.

The Arbitrator explored the concerns associated with the fact that the claimant’s attendant care needs may fluctuate based upon whether or not she was in school. The Arbitrator accepted the writer’s submission that the appropriate approach would be for the Applicant to invoice the insurer for the care provided between the date of the Interim Order and the Arbitration Hearing and that the insurer would pay that, subject to the maximum set out by the Arbitrator.

RECENT INTERIM ORDER – ATTENDANT CARE IN HOSPITAL:

In Haimov and ING Insurance Company of Canada, the writer represented the Applicant, Mr. Haimov. Mr. Haimov suffered a catastrophic brain injury as a result of a 2005 car accident. He was an in-patient at Baycrest Hospital when several Form 1s were completed. The insurer failed to honour its obligation to pay attendant care in accordance with the Form 1s and the Expense Applications submitted. The insurer claimed that the responsibility for attendant care was that of OHIP and claimed secondarily that it met any responsibility it had for attendant care when it paid its co-payment of approximately $1,500.00 per month under the Long Term Care Act. The Applicant brought a motion seeking an Interim Order for payment of attendant care benefits, based upon the Form 1s submitted.

The Arbitrator granted the Applicant’s motion, obliging the insurer to pay in-hospital attendant care in accordance with the Form 1s completed by the treating occupational therapist. He disagreed that the insurer was entitled to a deduction from these attendant care payments for any amount paid as a co-payment under the Long Term Care Act.

Although the Reasons to the decision have not been released, by the fact that the Arbitrator ordered additional payment of $6,000.00, per month in attendant care, it appears that the Arbitrator accepted the Applicant’s submission that the co-payment responsibility of the insurer of $1,500.00 per month was for payment of accommodation and meals under the Long Term Care Act rather than for attendant care.

The Arbitrator found that the Applicant met his obligation to show urgency in that, without the necessary attendant care, the Applicant was exposed to the possibility of death or serious injury through seizure activity, which could occur and be left untreated in the absence of attendant care.

It is plain from the award that the Arbitrator clearly rejected the Form 1 completed by the Section 42 evaluator who had indicated attendant care payable in Hospital should be paid in the hundreds of dollars per month (as opposed to the $6,000.00 awarded). The Section 42 evaluator had completed the Form 1 without identifying need, but instead focusing upon who the Section 42 assessor presumed should be meeting the need. The Section 42 evaluator completed the Form 1 indicating in several locations that the Hospital was responsible for providing the services for the attendant care needs in those sections. The Arbitrator plainly found that the hospital was not responsible to provide the attendant care required by Mr. Haimov.

CONCLUSION:

After a denial has been made by an insurer and mediation has been sought and failed, motions for Interim Orders for benefits may be appropriate in certain circumstances. The time frame for completing a motion for an Interim Order for benefits will normally be at least two months following the denial of the benefit.

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