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Tuesday, April 25, 2017

 
 
 

 
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Author Archive

Neuropsychological Assessments and the $2,000 AB Cap

In September of 2010, the Statutory Accident Benefits Schedule (SABS) were amended with respect to Costs of Examinations.  A cap of $2,000.00 was placed on each assessment completed, either for the insured or the insurer.

This cap has proven difficult for some more complex assessments, including neuropsychological assessments.  In order to obtain a reliable assessment the cost is well beyond $2,000.00.

Many in the accident benefits community (plaintiff lawyers acting on behalf of injured victims, as well as insurers) have been getting around this cap by dividing up the assessment into two distinct assessments; normally a “psychological” assessment and a “neuropsychological” assessment.  For the most part this has been widely accepted as a way to comply with the statutory limit while getting a fairly reliable assessment report.  There have been a few insurers who have not agreed with this approach.

A recent FSCO arbitration decision, Breadner and Co-operators [FSCO A15-005120] has challenged this approach.

A Treatment and Assessment Plan (OCF-18) was submitted on behalf of Ms. Breadner with the following breakdown of costs:

  • Neuropsychological Interview – $2,000.00
  • Neuropsychological Testing – $2,000.00
  • Neuropsychological Screen related to the OCF-18 – $250.00
  • OCF-18 – $200.00

With taxes, the total amount of the proposed OCF-18 was $5,028.50.

Co-operators paid $2,200.00 for the cost of one assessment, plus $200.00 for the cost of completing the OCF-18.  They also paid the applicable HST for one assessment.  Ms. Breadner applied for arbitration to claim the costs of the second assessment.

Arbitrator Caroline King determined that the assessment work constituted one assessment within the meaning of the SABS.  She noted that the OCF-18 identifies a neuropsychological assessment and the documents/reports themselves had the same purpose identified, the same author of both reports on the same date, the same dates of examination and the same tests administered.  It was also noted that the results and information in the second document were incorporated by reference into the first document.

Arbitrator King concluded that, “When these points are considered as a whole, I find that the nature, content, and language of the documents clearly supports a finding that the work done constituted one assessment.”

This decision presents a quandary for both injured individuals as well as insurers.  Unless the two assessments are distinct, they may not be entirely paid for by the insurer.  However, any insurance company taking this position would do so at their own peril, as it would also prohibit them from getting a complete neuropsychological assessment as well under Section 44 of the SABS (insurer’s examinations).

The entire decision can be read in its entirety at the link below:

Breadner and Cooperators – Neuropsych and Psych as one assessment

The New Dispute System for Accident Benefits Claims: You Lose Before You Even Begin

On April 1, 2016, all disputes for accident benefits from motor vehicle accidents in Ontario were moved into a new system through the License and Appeals Tribunal (LAT) through the Ministry of the Attorney General. With a new system came new rules on the dispute resolution process. One of the most concerning is Rule 19, which deals with costs.

It is a common legal principle in civil law that the party that loses a case must pay at least some of the winner’s costs, which can include legal fees and disbursements (things that have been paid to third parties to advance the matter). This is based on the tenant of access to justice, which allows anyone regardless of economic resources to advance a claim against a party that has wronged him or her. In the context of the accident benefits system, it means that an injured person can advance a dispute against an insurance company and, if they are successful, their legal costs will be paid. They are not, therefore, hindered in advancing a claim because they cannot afford to do so.

Rule 19 of the LAT rules states that, “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” A recent LAT decision[1] with respect to this rule indicates that the unreasonable, frivolous or vexatious actions of a party are only within the context of the actual dispute resolution (LAT) proceeding.

What this means is that, even with the most egregious behaviour of an insurance company against a financially strapped injured person, that person cannot be reimbursed for the legal costs needed to dispute the insurance company’s decision, unless the insurer did not behave themselves within the LAT proceedings. It is as if all of the actions of an insurance company outside of the proceedings don’t matter.

While an injured person could claim a special award as a punitive measure against an insurer for unreasonable conduct, this is limited to up to 50% in addition to whatever amount is awarded for the most egregious conduct. The injured party cannot be reimbursed for the $100.00 LAT application fee, any medical reports or documents, which support their claim, or the costs of having a legal representative to stand up to the insurer on their behalf.

For example, let’s say that an insurance company denied payment of income replacement benefits to an injured person and that the insurance company’s denial was totally unreasonable. The injured person must pay a $100.00 application fee to dispute the denial. In most cases, given the complexity of accident benefits legislation, they must retain a legal representative. They go through the LAT process. The arbitrator ultimately agrees that the insurance company was unreasonable in denying payment of the income replacement benefit and orders it to be paid. As long as the insurance company behaved themselves in the proceedings they do not have to reimburse the injured person for the application fee, all supporting documentation supporting their claim (which could be in the thousands of dollars), or the costs for retaining the legal representative. The injured person could, in fact, be better off not even disputing the insurance company’s denial.

In our view, this is totally unjust and unfair.

At Smitiuch Injury Law we fully intend on appealing any adverse decisions on costs and will raise the access to justice principle in order to declare the current Rule 19 void.

[1] 16-000041 v Intact Insurance Company, 2016 CanLII 78333 (ON LAT)

Chiocchio v. City of Hamilton et al.

On December 7, 2016, the Honourable Mr. Justice Skarica released his Reasons for Judgment after a trial before him in Hamilton. This action arose from a tragic motor vehicle accident which resulted in the Plaintiff (our client) being rendered a quadriplegic. The losses and damages suffered by the Plaintiff were considerable. The trial proceeded before Justice Skarica on the issue of liability only. While one of the Defendants admitted some fault for the accident, the main issue was whether the City of Hamilton was liable also.

The evidence during the trial established that the intersection in question had a history of accidents and that the City failed to paint the stop line at the intersection despite the recommendation to do so. The visibility at the intersection also became poor the further back that a motorist stopped. In the end, Justice Skarica found the City of Hamilton liable and apportioned fault at 50% against the City and 50% against the Defendant driver. In finding liability against the City, Justice Skarica concluded as follows:

“In my opinion, the evidence establishes that the condition of the intersection with the faded stop line posed an unreasonable risk of harm to a reasonable driver. Accordingly, I find on a balance of probabilities that the City of Hamilton failed to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair.”

Click here to read the full Judgment on CanLII. (Chiocchio v Ellis, 2016 ONSC 7570 (CanLII))

Peter Cho and Michael Smitiuch were trial counsel for the Plaintiffs.

Fearless Advocacy – The Dabor Trial

The lawyers, paralegals and staff at Smitiuch Injury Law continue to fearlessly advocate for their clients at both trials and arbitrations. It is the philosophy of the firm to take cases to trial where the other side fails to make a fair and reasonable settlement offer. We have conducted numerous trials and arbitrations in recent years and do not shy away from challenging liability or damages cases. The case of Dabor et al. v. Southbram Holdings Limited et al. (CV-11-417735) is one such example.

 

On June 3, 2016, a Toronto jury returned a verdict in favour of our clients after three weeks of trial. This action arose from the Plaintiff’s fall from a metal stud located above a drop-down ceiling to the floor ten feet below. The Plaintiff suffered a comminuted calcaneous (broken heal) and continues to suffer with significant pain.

 

This was a unique case in that the Plaintiff was an independent contractor performing regular work at a warehouse owned and occupied by the Defendant corporations. Neither of the parties had workers’ compensation coverage. It was alleged by the Defendants that the Plaintiff was the author of his own misfortune and as an experienced contractor he should have performed the work more carefully. In addition, they argued that the Plaintiff did not raise any safety concerns with the work he was being asked to perform and that he had in fact completed the same task safely one week before his fall.

 

Even before this case made it to trial, the Defendants had brought a summary judgment motion to try and put a stop to the lawsuit. Peter Cho of Smitiuch Injury Law successfully fought off this motion and the case continued on.

 

During the trial, we called numerous witnesses, including an orthopaedic surgeon, family physician, specialist pain doctor and a forensic accountant. In the end, the jury found the Defendants 38% responsible for failing to give clear instructions to the Plaintiff, failing to have a safe pathway above the ceiling and failing to provide the necessary equipment for the job. The jury assessed damages at $515,000.00 plus interest and the Plaintiffs beat the Defendants’ formal offer to settle.

 

This verdict was significant because it serves as a warning to owners and occupiers of properties that they must ensure they have the right person to do the job and that their premises must be safe for the work intended to be performed.

 

Michael Smitiuch and Peter Cho were trial counsel for the Plaintiffs.

Concussions – Not a “get up and shake it off” injury

The seriousness of concussions cannot be overstated.

Health care providers are becoming more aware of the effects of concussions (also known as Acquired Brain Injury – ABI).  What was once a, “get up and shake it off” occurrence, has now become a proper assessment with protocols for monitoring the status of the individual as they return to work or sports.

ABI is a physical injury to the brain (concussions). It can be caused by a blow to the head, severe rotation of the neck or whiplash, or even from a lack of oxygen. Over 160,000 Canadians suffer brain injuries every year and, with better reporting, that number gets more accurate and thus keeps rising.

concussions

Concussions can occur many different ways and can have many different symptoms. No two concussions are identical.

About 50% of ABI’s come from falls and motor vehicle accidents.  While many injuries are mild and fully recover (80 – 90% in 7 – 10 days), many can last for much longer.  Some of the symptoms are temporary – headaches, vomiting, concentration issues, memory issues and balance problems. However, some issues can be longer standing – personality changes, sensitivity to light and noise, sleep problems, depression and other psychological issues.

 

Prognosis for ABI’s depends on many factors.  Red flags include post traumatic amnesia, history of previous ABI, skull fracture, nausea and dizziness after injury.

 

Treatment for concussions are rest, rest, and more rest.  Also, those recovering have to limit their exposure to stimulation and thinking that taxes the brain (computer screens and video games).  Return to work or sports is the responsibility of the treating doctor.  Premature return increases risks of second impact syndrome (can be fatal).

 

The seriousness of this condition cannot be overstated.  New imaging techniques are developed to show the extent of the injury and direct treatment.  Hopefully those tests will help those suffering to have the greatest chance of recovery and advocacy.

 

This article was originally published in the Fall 2016 issue of Disclosure. Click here to read the complete newsletter.

Seven Greatest Fictional Lawyers

Seven Greatest Fictional Lawyers

1.Atticus Finch (Gregory Peck) – To Kill a Mockingbird

Image result for atticus finch

2. Lt. Daniel Kaffee (Tom Cruise) – A Few Good Men

Image result for lt. kaffee

3. Vincent “Vinny” Gambini (Joe Pesci) – My Cousin Vinny

Image result for vincent gambini

4. Perry Mason (Raymond Burr) – Perry Mason

Image result for perry mason

5. Elle Woods (Reese Witherspoon) – Legally Blonde

Image result for elle woods

6. Harvey Specter (Gabriel Macht) – Suits

fictional lawyer 6

7. Arthur Kirkland (Al Pacino) – And Justice for All

Image result for arthur kirkland justice

This is one of the articles from Smitiuch Injury Law’s Fall 2016 Newsletter. Click here to read the complete newsletter.

Catastrophic Impairment Denial Not Subject to Limitation Period

Because a catastrophic impairment designation is not a “benefit”, as defined under the Statutory Accident Benefits Schedule (SABS), there is no time limitation for disputing an insurer’s denial.

On January 6 2009, Zofia Machaj submitted an Application for Determination of Catastrophic Impairment (OCF-19) to RBC Insurance.  After conducting insurer’s examinations, RBC responded on May 25, 2009, stating that, “the assessors have formed the consensus opinion that you have not sustained a catastrophic impairment and therefore you do not qualify for the increased benefits.”

In order to dispute RBC’s denial, an Application for Mediation was submitted by Ms. Machaj on July 18, 2011, which was almost two months beyond the two year limitation period that the Insurance Act stipulates is required.  Section 281.1 of the Insurance Act establishes a limitation period, provides that a mediation proceeding, “…shall be commenced within two years after the insurer’s refusal to pay the benefit claimed” (emphasis added).

In 2015, Whitten J. issued a decision on a Summary Judgment Motion in the matter of Machaj v RBC General Insurance Company [2015 ONSC 4310], wherein he found in favour of RBC Insurance and ruled that the two-year limitation applied, because the denial, “…flushed out the consequences of the denial of the status of catastrophic impairment; namely, the enhanced benefits were not available.”

Ms. Machaj appealed.  The Ontario Court of Appeal disagreed with Judge Whitten’s decision, noting that, “In our opinion, by adding the words, “and you therefore you do not qualify for the increased benefits”, the respondent insurer was doing nothing more than telling the appellant that she lacked status to claim increased benefits. The additional words did not convert what was, in substance, a denial of a catastrophic determination into a denial of the specific benefits that would trigger the commencement of the two year limitation period.”

RBC Insurance sought leave to appeal to the Supreme Court of Canada, but it was dismissed with costs.

As such, under the current legislation, an insured person is not bound to dispute an auto insurance company’s denial of catastrophic impairment determination within two years, unlike a denial of an actual “benefit” under the SABS.

If you have been injured in an automobile accident and your insurance company has denied anything, it is always best to consult with a lawyer to ensure that your interests and entitlements are protected.

Providing Attendant Care in the Course of Employment, Occupation or Profession: Economic Loss Not Required

If an individual who is involved in a motor vehicle accident is incapable of self-care as a result of their injuries they are eligible to claim Attendant Care Benefits through their own insurance company.  The insurer is only obligated to pay the benefit if the insured person has received the goods or services, has paid or promised to pay the expense, and if the person who provided the goods and services either (A) “did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”, or (B) sustained an economic loss as a result of providing the goods or services to the insured person.  In the case of “B”, the amount payable has been limited to the amount of the economic loss sustained as a result of providing the attendant care.

The first option is normally interpreted as obligating an insurer to pay for a professional service to come into the injured person’s home to provide attendant care, such as a personal support worker.  The second option is normally interpreted as requiring an insurer to pay for any economic loss sustained by a “non-professional” (family member or friend) who provides attendant care to an injured individual.  But what if the family member or friend is a professional personal support worker?

In the Financial Services Commission of Ontario (FSCO) decision, Michael Walsh and Echelon General Insurance Company [FSCO A15-007448], Arbitrator Benjamin Drory confirmed that, if a family member or friend who is a personal support worker provides attendant care to an injured individual, they do not need to sustain an economic loss as a result of providing the attendant care and the amount of attendant care payable is not limited to the amount of any economic loss.

Arbitrator Drory made the following comments in this decision:

I find that a service provider falling into the (A) clause—i.e., one that did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged—does not need to establish economic loss for the purpose of these provisions. This appears to have been a deliberate effort of legislative drafting, and I accept that if the legislature had intended for the provision to read differently, it could have done so.

I also accept that the legislative intent behind these provisions, as advised to me by both parties, was an intention to prevent abuse of the attendant care benefit by family members who are not trained professionally to do it.

The sole question before me is whether the services provided by Mrs. Walsh to the Applicant were done in the course of the employment, occupation or profession in which she would ordinarily have been engaged. I find that the answer is yes, based on both the case law and the legislative intention presented to me.

He goes on to make the following analogy:

If a lawyer working for salary were to offer legal services pro bono to a cause they cared about outside working hours, would they cease being a lawyer during that time because they weren’t being remunerated for it? The answer would quickly be no—and I suspect many might even be offended at the suggestion. The question of what makes one a lawyer should consider one’s ability to be remunerated for it—but it also needs to take into consideration one’s acquired knowledge and skills relevant and/or necessary to the work, and any licensing authorities involved. One does not lose their skill set or status merely because they will not be remunerated financially in undertaking a particular task. I believe the question of what makes one a PSW is analogous—and is consonant with the decisions of Garson, J. and Arbitrator Fadel. I find it in harmony with the ordinary understanding of what it means to be part of a profession, and the common day-to-day usage of that term.

It also fits with the legislature’s intention to restrict access to attendant care benefits by untrained family members and friends reflected in the 2010 and 2014 amendments. Where a family member is a trained professional working in the relevant field, concerns respecting qualification seem to be directly addressed. It would seem odd, as a matter of public policy, to mandate that insureds with trained professionals in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable. As Arbitrator Fadel noted, there is no restriction in clause (A) of the Schedule that mandates a professional healthcare aide be arm’s length, nor do I find it appropriate to read one into it.

This decision can be read in its entirety by clicking here.

Negligence by Restaurants – Can You Sue?

Recently in the news, we heard about a situation where a waiter served a man a meal which contained food he was allergic to even though the man had forewarned the waiter about this allergy. Simon-Pierre Canuel was in a coma for several days after being served salmon tartar to which he has a severe allergy.

This situation gives rise to the question as to whether the waiter (or anyone else) was civilly liable for the mishap – meaning, can Mr. Canuel successfully sue the waiter?

Any action or omission that is the subject of a civil claim (where one person sues another) will fall on a scale from accidental to intentional, with negligent (think of it as extreme carelessness) being near the middle. An intentional act would occur if a restaurant worker intended to act in a way that would clearly harm a person. It is more likely that being served food that you are allergic to would fall somewhere between an accident and negligence. To constitute an accident, it would have to be shown that the result of what the worker did couldn’t be easily expected nor easily prevented. Finally, negligence, which is neither intentional nor accidental, is when a person fails to provide the proper care that the law requires them to give.

This situation would likely be a case of negligence. Negligence occurs when someone acts in a way where they could have expected that harm would occur, or they could have easily prevented the harm. To establish that a defendant was negligent, the most common approach is to prove three things. (1) There is a duty of care (2) that was breached, (3) resulting in damage. This test is in its simplest form, and usually requires a much more detailed analysis, but for our purposes – this should be enough.

First, there must be a duty of care that is recognised by law. To show this, lawyers will look at past cases to see if restaurant workers are expected to act in a way that ensures that the customers they serve stay safe. If there is no such case, then the lawyers will have to establish a new duty of care. The lawyers would have to show that restaurant workers should be expected to make sure the customers don’t come to any harm.

Second, it is necessary to show that the restaurant worker acted or failed to act in the way they should have. The kinds of things that could be expected at a restaurant could include, for example, requiring that the waiter ask about allergies or for the restaurant to have a plan to ensure no contact with dangerous food.

Third, someone or something must have suffered harm or damage and this harm or damage must have occurred because of the restaurant worker’s actions. A severe allergic reaction, causing harm to your health would satisfy this part of the test.

If you should ever find yourself the victim of a severe allergic reaction to food after notifying the server or the restaurant of your allergy, it is always best to consult with a personal injury lawyer to see if your circumstances would give rise to legal action.

The Lawyers Weekly – Use of Video Evidence Increasing

Below is an article written by Michael Smitiuch, which was published in The Lawyers Weekly on June 24, 2016.

The Lawyers Weekly Article - Video Evidence

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