In this week’s edition of The Lawyers Weekly (October 25, 2013), Michael Smitiuch provides an analysis of the “tug of war” between auto insurers and consumers.
Although most in the industry agree that fraud is a concern that needs to be addressed, it is the potential “other cost-reduction initiatives” that are a source of considerable debate.
The Lawyers Weekly article can be read in its entirety by clicking here.
To read the complete article go to: Advocate Daily
The Law Times has published an article examining the current legal issue as to what constitutes an “economic loss” for family members and friends of individuals injured in motor vehicle accidents to be compensated for providing attendant care.
In September 2010 the Statutory Accident Benefits Schedule (SABS) was changed so that non-professional attendant care providers could only be compensated if they incurred an “economic loss” by providing the attendant care. The SABS does not define what exactly is an “economic loss” and this has been the subject of vigorous debate between insurers and insureds.
The case of Henry v. Gore Insurance it was upheld by the Ontario Court of Appeal that an insurer cannot just compensate an attendant for the actual amount of the economic loss; rather, the insurer is bound to compensate the attendant for all incurred services in accordance with the amounts calculated by the Attendant Care Needs Assessment (Form 1).
In the October 14, 2013, Law Times article, the focus is now on the decision, Simser and Aviva Canada Inc., which is currently under appeal. In this case the insured tried to broaden the definition of “economic loss” to include loss of opportunity, labour or leisure, which the arbitrator did not agree with. Rather, the arbitrator took the position that there must be some type of monetary or financial loss.
If the Simser matter or some other case ever does reach the appeal court, Toronto personal injury lawyer Michael Smitiuch is confident any definition of economic loss would keep the threshold low to include people who give up part-time jobs or some of their work hours to provide necessary care for family members.
“Although it doesn’t specifically address the issue of economic loss, I believe Henry v. Gore supports the proposition that any time missed from work will constitute an economic loss. That would be consistent with previous case law which says insurance coverage provisions are to be interpreted broadly, not restrictively,” says Smitiuch.
The Law Times article can be read in its entirety by clicking here.
The Financial Services Commission of Ontario (FSCO) has released an arbitration decision regarding the calculation of a whole body impairment rating when assessing whether or not an insured meets the criteria for a catastrophic impairment under the Statutory Accident Benefits Schedule (SABS).
Under the Ontario Accident Benefits regulations, an insured who is deemed to be catastrophically impaired has increased limits on various accident benefits.
In D.B. and Economical Mutual Insurance Company [FSCO A12-000632] Arbitrator Killoran dealt with the complex issue as to whether or not the insured, D.B., who suffered serious orthopaedic and psychological injuries in a motor vehicle accident in November 2008, suffered at least a 55% whole body impairment rating under the AMA Guidelines, in order for her impairments to be deemed catastrophically impaired.
D.B.’s lower leg injuries required five surgeries and she is unable to walk independently. She is confined to a wheelchair for 99% of her time. The only time that she does not utilize a wheelchair was when she goes to the washroom, and only with the use of rails.
Economical tried to argue that D.B. should have her leg amputated, which would then reduce her impairment rating to the point that she would not meet the criteria for catastrophic impairment.
Arbitrator Killoran stated that,
No doctor, insurer, arbitrator or judge can dictate to D.B. that she must have an amputation as a remedial procedure.
This decision can be read in its entirety by clicking here.
Smitiuch Injury Law’s own Michael Smitiuch is quoted in the latest issue of the Law Times in an article addressing the provincial government’s call for a 15% reduction in auto insurance rates.
He notes that the planned cuts are modest compared with the reductions in available benefits since 2010. “Fifteen per cent is certainly not too much. For Ontario consumers since 2010, benefits have been severely restricted, but the majority of claimants are still paying the same premiums. It’s like they’re still paying for a full tank of gas except now they only get it filled up halfway.”
You can read the article in its entirety by clicking here.
A recent decision by the Financial Services Commission of Ontario (FSCO) has clarified that an insurer cannot penalize an accident benefits claimant for not attending an insurer’s examination in certain circumstances.
In the decision Kelly Quinones and Unifund Assurance Company [FSCO A12-000866] Kelly Quinones wished to dispute Unifund Assurance’s stoppage of her attendant care and housekeeping and home maintenance benefits. Unifund argued that Ms. Quinones was prohibited from proceeding to arbitration pursuant to Section 55(2) of the Statutory Accident Benefits Schedule (SABS) because she had failed to attend the scheduled insurer’s examinations.
Ms. Quinones’ accident benefits insurer, Unifund Assurance, sent out a notice to her that she was required to attend insurer’s examinations for the purpose of determining her entitlement to attendant care and housekeeping and home maintenance benefits.
In this particular case Unifund did not specify who the assessor would be in their notice and referred to the profession as “OT”. Arbitrator Maggy Murray noted that “OT” is not a regulated health profession. It was clarified that “OT” was an abbreviation for “Occupational Therapist”, which is a regulated health profession. However, Arbitrator Murray noted that,
Insurers must “explicitly and unambiguously advise” insureds in “straightforward and clear language, directed towards an unsophisticated person,” the information set out in s.44(5) of the Schedule. An unsophisticated person may not know what an “OT” is.
Smitiuch Injury Law is pleased to host its annual seminar, entitled “Accident Benefits: Practical Issues for Health Care Professionals.” It will be held on Wednesday, September 25, 2013 at the Brantford Golf and Country Club.
The keynote topic at this year’s seminar will be on “Living With and Caring for an ABI Survivor – A Mother’s Perspective”. Bernie Perry, the mother of an acquired brain injury survivor, will identify the struggles and successes she has experienced in her daughter’s recovery and rehabilitation. Bernie will be accompanied by her case manager, Jody Abbot and Dr. Diana Velikonja, a clinical neuropsychologist at Storrie, Velikonja and Associates in Burlington.
The afternoon will also provide an update on the latest news and case law in Ontario Accident Benefits, followed by an open forum with an expert panel to answer participant’s questions. The expert panel will be composed of Ms. Heather Driver (Financial Services Commission), Tamara Forbes (Forbes Health Management), Anna-Marie Musson (Miller Thomson) and Chris Jackson (Smitiuch Injury Law).
The afternoon will begin with registration and lunch at 11:30 a.m. and will end with a cocktail reception and social at approximately 3:30 p.m.
This event is 100% complimentary.
If you wish to attend please RSVP no later than September 18, 2013 by calling 519-754-1558 or by email to [email protected].
A copy of the invitation can be accessed by clicking here.
The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline for 2013.
According to the FSCO website, “The hourly rates are unchanged from the 2012 level. This is in line with the auto insurance rate reduction strategy outlined in the government’s 2013 Spring Budget.” It has also added a category for kinesiologists, who are now regulated health professionals in Ontario.
A copy of the 2013 Professional Services Guideline is available by clicking here.
The Financial Services Commission of Ontario (FSCO) is reporting that the backlog of mandatory mediations will be over by the end of August, 2013.
When an accident benefits insurer denies a benefit, such as medical treatment, a mediation through FSCO is the mandatory first step in the dispute resolution process. In previous years a mediation date would often take up to one year from the date the mediation application was submitted. Judicial and arbitration decisions (ironically from arbitrators at FSCO) deemed that a mediation must be conducted within 60 days in accordance with the Dispute Resolution Practice Code or it can be deemed to have been failed.
FSCO provided statistics and timelines with respect to the backlog. These can be viewed by clicking here.
The Ontario Court of Appeal has upheld the decision of Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, which found that an automobile insurer must pay an insured the full amount of attendant care benefits as set out in the Form 1 and is not entitled to take a proportional approach to the payment of this benefit. Gore Mutual Insurance argued that its liability for attendant care benefits was limited to the number of hours that the attendant care provider lost from work. Justice Ray did not agree with this approach and stated that a plain reading of the relevant section must be followed.
The Honourable Alexandra Hoy, who wrote on behalf of the Court of Appeal, stated the following:
Attendant care benefits are only payable in respect of the provision by a family member of care detailed in the Form 1 assessment of the insured’s attendant care needs if the family member sustains an economic loss as a result of providing such care to the insured. If an economic loss is sustained, attendant care benefits are payable with respect to all care detailed in the Form 1 provided by the family member, subject to the maximums in s. 19(3) and various other safeguards, including ss. 42 and 33 of SABS-2010. If no such loss is sustained, no attendant care benefits are payable in respect of care provided by the family member, even if the family member provides care that would otherwise be provided by someone in the course of their employment, occupation or profession and would necessitate the payment of attendant care benefits by the insured. And to the extent that the economic loss sustained by the family member as a result of providing such care to an insured exceeds the maximum attendant care benefits stipulated in SABS-2010, the family member is not indemnified.
Please see our blog post on the trial judge’s decision by clicking here.