The recent FSCO decision of Mannarino and ING (A08-000388) dealt with the issue of when a claim is made for non-earner benefits.

The applicant was injured in a car accident on May 24, 2006. On June 2, 2006, he submitted an OCF 1 and a disability certificate. The disability certificate was completed by the applicant’s family doctor and he answered no to the question: does the applicant suffer a complete inability to carry on a normal life? The applicant signed the disability certificate on June 6, 2006.

On June 26, 2006, the insurer wrote to the applicant and enclosed an OCF 9 advising him that he was not eligible for non-earner benefits based on the disability certificate.

A year and a half later, on November 12, 2007, the applicant’s treating chiropractor completed a further disability certificate, in which she answered yes to the question: does the applicant suffer a complete inability to carry on a normal life? The applicant signed the disability certificate and it was received by the insurer on November 19, 2007.

The arbitrator was asked to determine whether the two-year limitation period had expired, based on the insurer’s initial refusal to pay on June 26, 2006.

Arbitrator Ashby held that the applicant’s submission of an Application for Accident Benefits was not an application for non-earner benefits that could be validly refused by the insurer. She found there must be some clear indication that the insured applied for the benefit before the insurer can refuse the benefit. The applicant’s signature on the disability certificate of June 6, 2006 is evidence he accepted his doctor’s opinion that he was ineligible for non-earner benefits. There was no application for the insurer to refuse. An insurer cannot refuse a benefit it is not liable to pay. The applicant’s first claim for benefits was the submission of the disability certificate of his chiropractor dated November 2007. This was not responded to by the insurer, as it had already denied benefits based on the June 2006 disability certificate.

This case has implications for insurers, with respect to non-earner and other benefits identified in the disability certificate. The submission of a disability certificate, confirming the applicant meets the various tests for disability and signed by the applicant, is now considered a claim for benefits and must be responded to by the insurer. Further, even if the disability certificate initially indicates the applicant does not qualify for benefits, if a subsequent disability certificate is submitted and indicates the applicant qualifies for benefits, the insurer must respond to this as a claim for benefits.