Summary prepared for OTLA by Corina Bachmann of Bachmann Personal Injury Law
This case addresses the issue of what is a “reasonable explanation” for submitting the OCF-1 outside the timeline mandated by the Statutory Accident Benefits Schedule (SABS).
The applicant, Ms. Buttenham, was involved in a motor vehicle collision on May 29, 2018. She advised her insurer of the collision the following day, and the insurer sent her an accident benefit package the day after. Ms. Buttenham then submitted a Disability Certificate and a Treatment Plan, but not the OCF-1.
By mid-June 2018, despite not having received the OCF-1, the insurer partially approved a treatment plan, but by the summer of 2019, the insurer denied two treatment plans on the basis that the OCF-1 was not submitted.
Ms. Buttenham subsequently retained Sherilyn Pickering, Kahler Law Firm (OTLA member) and by way of letter dated October 25, 2019, the first request for the complete AB file was sent to the insurer. There was disagreement as to when the applicant received the AB file, with the insurer contenting that the file was sent in November 2019 and the applicant asserting she did not get the file until April 22, 2020.
It was agreed that an OCF-1 was submitted on April 23, 2020, and on April 30 the insurer requested additional documentation and an explanation for the delay in submitting the OCF-1. Two weeks later, the applicant responded with a list of explanations, amongst them that Ms. Buttenham was under the impression that she had retained counsel shortly after the collision and that they had submitted the OCF-1 on her behalf; that she suffered from pre-existing psychological conditions which were worsened after the collision; and that upon receipt of the compete accident benefit file, her counsel immediately submitted the OCF-1.
After reviewing the applicable SABS sections, Adjudicator Ulana Pahuta noted that a failure to submit an OCF-1 within the mandated timeframe is not fatal if the applicant has a “reasonable explanation” for the delay (section 34 of the SABS). She then referred to Horvath v. Allstate Insurance Company, 2003 ONFSCDRS 92 (CanLII) and K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT) which summarize the guiding principles:
- An explanation must be found to be credible before reasonableness can be assessed.
- The onus of proving reasonableness is on the insured/applicant.
- Ignorance of the law is not a “reasonable explanation”.
- The test for “reasonable explanation” is both a subjective and objective test.
- The lack of prejudice to an insurer does not make an explanation reasonable.
- The assessment of reasonableness “includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit”.
After reviewing the evidence and the positions of the parties, Adjudicator Pahuta found that the applicant’s various psychological conditions (including anxiety, depression, bi-polar disorder and severe panic attacks) impaired her ability to submit an OCF-1, and as such, her explanation was reasonable. In doing so, the Adjudicator relied on clinical notes and records (CNRs) from the applicant’s treating psychiatrist. The family doctor’s CNRs were also helpful in that they documented the applicant’s struggles with forgetfulness, decreased focus and concentration.
As well, Adjudicator Pahuta found that the applicant was under a mistaken belief that the insurer had accepted her claim, given that they had partially approved a treatment plan early in the claim. The applicant’s evidence in this regard was found to be both credible and reasonable.
In balancing the respective rights of the parties, Adjudicator Pahuta found that the insurer had indeed been prejudiced by the delay, however, “on balance, I find that the hardship to the applicant if she is prevented from proceeding to the substantive hearing to be far greater than the prejudice to the respondent due to the delay”. As a result, Ms. Buttenham’s claim was allowed.
