How long do I have to apply for accident benefits?

The regulations that govern accident benefits (SABS) require a person who has been injured in a car accident to notify their insurance company about the accident within seven days of the accident, or as soon as practicable thereafter. What happens if you notify the insurer after more than seven days have passed? This question was recently considered by a FSCO arbitrator in the case of S.R. vs. State Farm Mutual Automobile Insurance Company.  In that case Mrs. R was injured in a car accident on July 17, 2005. She did not notify her insurance company of her claim until December 17, 2007.

Immediately following the accident, Mrs. R. saw her doctor for pain in her back. She took some painkillers and received some treatment from a chiropractor over the next two years. In November 2007 following a severe episode of back pain, she went back to her family doctor who referred her to physiotherapy. The physiotherapist submitted a treatment plan to State Farm to request coverage for the physiotherapy. This treatment plan was the first notice that State Farm had of the claim.

State Farm argued that Mrs. R was out of time and that she should not be paid for income replacement, housekeeping or medical benefits. Mrs. R. argued that she had a reasonable explanation for the delay. Her explanation for the delay was the following:

…she developed mental health impairments of depression and anxiety as a direct result of caring for her husband who sustained a brain injury and a personality change in December 2001 in a motor vehicle accident. While she retained counsel, she instructed him to take no steps in the matter. It was only after her husband’s tort and accident benefits claims were settled that she could focus on herself, obtain medical treatment and avail herself of accident benefits.

On the question of whether Mrs. R gave notice “as soon as practicable”, the arbitrator found that she had not. She could have easily asked her lawyer to write to State Farm and put them on notice of the claim. However, the analysis does not end there. The arbitrator then went on to consider whether Mrs. R. had a reasonable explanation for the delay. In this analysis, the arbitrator carefully reviewed the circumstances that caused the delay, all of which pertained to Mrs. R’s husbands traumatic brain injury and the stress and depression that this injury caused Mrs. R to suffer.

After reviewing the documentary evidence and testimony of Mrs. R., the arbitrator concluded that her explanation was credible and reasonable up until July 2007, at which time her husband received the settlement money from his car accident.  The arbitrator found that the subsequent delay from July to November was also reasonable in light of the upheaval that Mrs. R. had suffered in her life, following her husband’s accident.

Ultimately, the arbitrator decided that Mrs. B. was allowed to proceed with her claim for accident benefits.

Car accident victims can take two important lessons from this case. First of all, it is important to notify your insurance company of your intention to claim accident benefits as soon as possible after the car accident.

At the same time, if circumstances have not allowed you to put the insurance company on notice of the claim “as soon as possible” after the accident this does not necessarily mean that you are not entitled to apply for accident benefits. In this case, the arbitrator allowed the claim to proceed where notice was given two and a half years after the accident.