Monday, 24 September 2012

Retroactive Claims For Attendant Care

Section 42(5) of the SABS states:

An insurer may, but is not required to, pay an expense incurred before an assessment of attendant care needs that complies with this section is submitted to the insurer. 
A similar provision (39(3)) can be found in the SABS that applies prior to September 1, 2010.  Seems pretty clear.  An insurer would not have to pay for attendant care expenses before a Form 1 is submitted by a claimant. 

Well it seems that might not be true according to T.N. v. The Personal (FSCO A6-0003999, July 26, 2012) which deals with s. 39(3) of the Old SABS.

The provisions of s. 39 (Old SABS) clearly indicated that an insurer was only obliged to begin payment within 10 business days after receipt of the Form 1. Similarly, the insurer’s right to assess attendant care needs and correspondingly adjust payments appeared to arise only after receipt of the Form 1. Pending receipt of the Form 1, the insurer had no explicit right to assess the claimant's attendant care needs.

Arbitrator Bayefsky found that s. 39(3) did not displace the insurer’s obligation to pay “reasonable and necessary Attendant Care Benefits” determined in accordance with a submitted Form 1. While s. 39(3) provided that an insurer was not required to pay Attendant Care Benefits before the Form 1 was submitted, this did not, in Arbitrator Bayefsky’s view, mean that a claimant forfeited their right to attendant care benefits prior to submitting a Form 1.

These provisions were included in the SABS specifically to prevent retroactive claims for attendant care in an effort to contain fraud in the system. An insurer is at a considerable disadvantage when presented with a claim for 6 months of retroactive attendant care benefits during which it may have limited or no information as to the extent of the attendant care needs or “expenses incurred”.

Insurers can expect for retroactive attendant care benefit claims which will likely be used as leverage for settlements. The best advice for containing exposure is to proactively request submission of For 1s where the claim does not involve a minor injury.

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