Jazey v State Farm Mutual Automobile Insurance Company, Arbitration Decision FSCO A13-001352 (December 9, 2014)
On December 9, 2014, Arbitrator Knox M. Henry released a decision on the case of David Jazey and State Farm Mutual Insurance Company.
Amongst other issues, the case dealt with whether an insured person can incur attendant care expenses in advance of the submission of an Assessment of Attendant Care Needs (Form 1).
By way of background, on September 9, 2008 David Jazey was involved in a serious motor vehicle accident that resulted in spinal cord injury with disc herniation between C4-C5 and C6-C7. Mr. Jazey subsequently underwent cervical decompression surgery in October 2009 and his recovery period was lengthy. Uncontested testimony confirmed that, as a result of the surgery, Mr. Jazey was unable to engage in his activities of daily living and required constant care in almost all aspect of his life; he received constant attendant care from his mother and his wife.
It was not, however, until May 30, 2011 that Form 1’s were prepared to estimate the post-surgical attendant care needs of Mr. Jazey. A claim was pursued for the period of October 20, 2009 to December 31, 2009 based on the estimated and reducing care needs which totalled $4,021.21.
Upon receipt of the claim, the insurer refused to make payment of benefit and raised several concerns about the retro-active submission. The insurer argued that Section 39(1) of the Statutory Accident Benefits Schedule confirms that a valid Form 1 submission is a prerequisite to the payment of Attendant Care benefits. The insurer also raised concern that Mr. Jazey failed to give explanation for the delay in applying for the attendant care benefits, despite being represented by legal counsel. Last, the insurer objected to the claim given that it did not qualify and quantify the amount of attendant care benefits provided; this concern included the fact that the insured failed to provide notes, receipts or invoices to detail the frequency and duration of the services that were provided to him.
The arbitrator found that there is no requirement in the Schedule to stipulate that an application for attendant care benefits must be submitted to an insurer before an expense is incurred. The arbitrator instead confirmed that there is only a requirement for an insured person to submit a Form 1 before the insurer is liable to pay any attendant care benefits.
Although the decision did not address the failure to provide explanation for the delay in the claim, focus was given to the legitimacy of Mr. Jazey’s claim. Arbitrator Henry confirmed, as comparable to Arbitrator Wilson’s comments in Kelly, that “this is not one of those abusive cases where an unscrupulous insured attempts to maximize accident benefits with a dubious attendant care claim.”
In addressing whether there is there is a need for attendant care service to be qualified and quantified, Arbitrator Henry confirmed that an insured person is not required to produce definitive evidence of the frequency and duration of the past attendant care services performed. The following was indicated:
“I find that Mr. Jazey’s wife and mother cannot be penalized for not diarizing what care they provided to Mr. Jazey. State Farm did not provide me with any regulatory or legal requirement that detailed notes must be kept of what care was provided. Further, State Farm did not obtain and provide its own experts’ opinion to indicate that the Attendant Care Benefits sought by Mr. Jazey were unreasonable. State Farm had already paid for assistive devices which Mr. Jazey required for mobility and safety after his operation, yet it denied the requested Attendant Care Benefits. I find this contradiction in State Farm’s actions unfathomable.”
In his decision, Arbitrator Henry confirmed that the claim for attendant care benefits was reasonable and necessary and should be paid. The decision also confirmed that the insurer acted unreasonably and that Mr. Jazey was entitled both to interest and special award.
This decision has positive implications for those seeking retro-active payment of attendant care benefits as well as those who deal with insurers who request extensive documentation of services received. Undoubtedly, this one should be considered a “win” for injured parties!
