An interesting question was put before Adjudicator Cynthia Pay at the Licence Appeal Tribunal ("LAT") recently. A preliminary issue hearing was conducted to determine whether a claim for non-earner benefits could proceed to a hearing before the LAT based on inadequacies in the application for the benefit. Effectively, she was asked to determine what constitutes a completed application for a "specified benefit" (income replacement benefit, non-earner benefit, caregiver benefit or housekeeping and home maintenance).
In D.S. v. Certas Home and Auto Insurance Company, the Applicant submitted an Application for Accident Benefits (OCF-1) and Disability Certificate (OCF-3) to the Insurer. The OCF-3 noted that the Applicant did not meet the test for non-earner benefits. The Applicant then submitted an Election of Benefits (OCF-10) confirming that she elected to receive non-earner benefits. No further Disability Certificates were submitted to the Insurer supporting her entitlement to non-earner benefits.
The Insurer argued that the Applicant did not meet the requirements for an application for non-earner benefits because she did not provide a Disability Certificate that confirmed that she met the test. It based its argument on subsections 36(2) and (3) of the SABS, which state that an Applicant shall submit a completed Disability Certificate with her application for a specified benefit, and that an Applicant who fails to submit a completed Disability Certificate is disentitled to a specified benefit until a completed Disability Certificate is submitted.
Adjudicator Pay disagreed with the Insurer, and found that the Applicant sent a completed Disability Certificate that indicated that she was applying for non-earner benefits. She found that the fact that her doctor noted that she did not meet the test for non-earner benefits did not render her Disability Certificate incomplete.
At paragraph 20, Adjudicator Pay wrote, as follows:
Further, I find that the consumer protection purpose of the legislation requires an examination of the substance of the Applicant's application for benefits. The Applicant submitted a Disability Certificate as well as an Election of Benefits form that clearly demonstrated that she wished to receive non-earner benefits. To find that she had not applied for non-earner benefits based on the box checked off by the doctor would be to prioritize form over substance, and violate the spirit of the legislation.
As a result, Adjudicator Pay determined that the issue was within the Tribunal's jurisdiction, and that the Applicant could proceed to a hearing to dispute the Insurer's denial of non-earner benefits.
Obviously, the Applicant in this case will still be required to prove her entitlement to non-earner benefits based on the merits of the claim itself. Despite this, it is quite interesting that the adjudicator allowed a dispute concerning an application for a specified benefit to continue despite the lack of a supportive Disability Certificate.
By way of background, the Disability Certificate is a mandatory form. It must accompany an application for a specified benefit, pursuant to section 36 of the SABS. The form itself is called the OCF-3. It was prescribed by the Superintendent of Insurance. The OCF-3 is completed partly by the claimant and partly by the claimant's medical practitioner. Among other things, the medical practitioner is asked to indicate (or certify) whether the claimant meets the requisite disability test of various specified benefits, such as income replacement benefits, non-earner benefits, etc.
Where a person applies for a specified benefit and the OCF-3 indicates that the person meets the requisite disability test for that benefit, the insurer will usually start paying the benefit (assuming all of the other eligibility criteria for the benefit is met). However, if the OCF-3 does not indicate that the claimant meets the disability test for the benefit, the insurer will almost always not pay the benefit.
By allowing the D.S. matter to proceed to a hearing, the adjudicator effectively held that an Applicant could be entitled to a specified benefit even if the practitioner that prepared the Disability Certificate did not believe she met the test. According to this decision, all that is a required is that the Disability Certificate form itself be completed and sent to the Insurer, not that the Disability Certificate supports the claim. This means that the form, rather than the substance, of the Disability Certificate is the deciding factor in whether or not an application has been made for a benefit.
This raises a perplexing question: Why does section 36 of the SABS require a completed Disability Certificate to accompany an application for a specified benefit? What purpose does the Disability Certificate serve if the claimant can continue disputing entitlement to the benefit when their own medical practitioner has certified that they do not meet the disability test for that benefit?
Based on this decision, it would appear that the adjudicator was prepared to treat the Disability Certificate as simply one piece of evidence supporting a claim for a specified benefit, and not as a determinative piece of evidence. An Applicant could theoretically bring a claim for any specified benefit without a supportive Disability Certificate, and then proceed to build up a claim after the application is submitted. If this is the way that the LAT intends to treat the issue on a go forward basis, insurers should be prepared to deal with disputes concerning denials based solely on an unsupportive Disability Certificate.
See AABS v Certas Home and Auto Insurance Company, 2016 CanLII 73693 (ON LAT)
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