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Saturday, October 14, 2017

 
 
 

 
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Case Law

Amount of Attendant Care Payable is NOT Limited to the Extent of the Economic Loss Suffered

A recent decision delivered by Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, 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. In the decision, Justice Ray stated the following:

A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured – and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured as described in the Form 1.

The decision can be read in its entirety here: Henry v Gore Mutual Insurance Company, 2012 ONSC 3687

Applying to Wrong Insurer is a Reasonable Excuse for Delay in Applying to Correct Insurer for Accident Benefits

A recent arbitration decision by the Financial Services Commission of Ontario (FSCO) confirms that an insurer cannot deny accident benefits if the application is significantly delayed because the claimant applied to the wrong insurer first.

In the decision, Egal and Economical [FSCO A10-004057] Arbitrator Judith Killoran concluded that the Applicant, Roda Egal, had a reasonable excuse for the delay in applying for accident benefits with the Economical Insurance Company, because Ms. Egal had originally applied to another insurance company (American Assurance) who was handling her claim.  Economical did not take timely steps to request information to corroborate her claim, but rather simply maintained their position that she had not applied for accident benefits within the timeframes outlined in the Statutory Accident Benefits Schedule (SABS).

Furthermore, Arbitrator Killoran ordered a special award in the amount of $5,000.00 against Economical for its unreasonable position.  As stated in her decision,

I find no merit in Economical’s position that it had no responsibility to adjust Ms. Egal’s file until receiving a reasonable explanation for her delay in applying. Economical received a reasonable explanation for the delay. Economical was also aware that documentation had been sent to the wrong insurer and persisted in refusing Ms. Egal’s claims long before it had received her file.
I find that Economical failed egregiously in its responsibilities to its first party insured, Ms. Egal. It did not follow up expeditiously in obtaining her file from American Assurance and it made decisions about her entitlement in its absence. No attempts were made to evaluate the merits of Ms. Egal’s claims. I find that Economical unreasonably withheld the payment of benefits to which Ms. Egal was entitled. Consequently, I find that Ms. Egal is entitled to payment of a special award fixed at $5,000, inclusive of interest. 

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

The Attendant Care Needs Assessment (Form 1): It is what it is

In a recent Financial Services Commission of Ontario (FSCO) Arbitration ruling, Costel Sicoe and Jevco Insurance Company [FSCO A08-001173], Arbitrator Susan Sapin confirmed that the hourly rates indicated on the Attendant Care Needs Assessment (Form 1) are the rates which are to be used by insurers for paying the benefit.

Mr. Sicoe was catastrophically injured in a motorcycle accident on June 15, 2006.  As a result of this accident he required round-the-clock attendant care.  Jevco paid the attendant care to the maximum of $6,000.00 per month.

However, in February 2009 Mr. Sicoe moved to Romania.  Jevco reduced the monthly attendant care payments based on an argument that the basic supervisory care amount of $7.75 per hour is based on the minimum wage in Ontario at the time of the accident, but in Romania the minimum wage was $1.30 per hour.  Jevco paid $1.30 per hour for the basic supervisory services.  This resulted in Mr. Sicoe being paid less than the $6,000.00 per month that he was entitled to in accordance with the Form 1.

Arbitrator Sapin confirmed the interpretation of an “incurred expense” from previous case law:

It is well-established that an applicant need not actually receive the items or services claimed in order to be entitled to an expense. To do otherwise would allow the insurer to set up the inability of an insured to pay for a benefit as a shield from its obligation under the policy of insurance. It is sufficient that the reasonableness and necessity of the service be established and that the amount of the expenditure can be established with certainty.

This decision further confirms that insurers are bound to pay attendant care benefits in accordance with the Form 1 and that they do not have the discretion to pay below the rate established by the Form 1.  To that end, Arbitrator Sapin stated the following:

I note that the most recent Attendant Care Hourly Rate Guideline, dated June 2010 and available on the Commission website, establishes the maximum expense that automobile insurers are liable to pay under the Schedule for attendant care services (for accidents after September 1, 2010). The Guideline also states that “Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.” It does not say, however, that insurers can pay less.

State Farm to pay $23,000.00 Special Award for Unreasonably Withholding IRB’s

NOTE: This decision was overturned on appeal on October 1, 2012

In the decision Marcia Henry and State Farm Automobile Insurance Company [FSCO A09-000213] FSCO Arbitrator Denise Ashby ordered the insurer to pay a claimant’s income replacement benefits (IRB) with interest. The insurer was also ordered to pay a special award of $23,000.00 for unreasonably withholding the benefit.

Marcia Henry was a full-time emergency triage nurse in a hospital. The medical experts identified that she was only capable of engaging in sedentary work. Despite that, State Farm terminated her income replacement benefits prior to the 104-week mark, taking the position that she did not suffer a substantial inability to perform the essential tasks of her pre-accident work.

The Arbitrator also considered Ms. Henry’s entitlement to IRB’s after the 104-week mark, when the eligibility criteria changes to having to suffer a complete inability to engage in any employment for which she is reasonably suited, based on education, training and experience.

Although Ms. Henry took courses to upgrade her resume following the accident, it was determined that she still remained competitively unemployable when compared to her pre-accident job. The Arbitrator noted that, “It is unrealistic to believe that a woman of Ms. Henry’s age, disability and expected level of income would be hired over similarly educated, healthy and younger candidates who would likely have lower salary expectations.”

The Arbitrator went on to state that,

The accident occurred in February 2007. For the majority of her studies Ms. Henry was not engaged in employment and was able to work at her own pace. Notwithstanding this flexibility, it took four years to complete her degree. While Ms. Henry’s extensive experience and academic success might appear to make her an attractive candidate for employment as a nursing or public health instructor, her lack of teaching experience and accommodation requirements negate this. I accept that Ms. Henry enrolled in post-graduate studies as part of a career plan which would have seen her transition from the physically demanding role of emergency department nurse to a more sedentary role in public health. However, the injuries sustained in the accident prevented her from implementing her plan. Therefore, I find that Ms. Henry is entitled to post-104 week income replacement benefits.

With regard to a special award, the Arbitrator made the following comments:

State Farm stubbornly held to the opinion of its medical assessments of 2007 that Ms. Henry was not substantially disabled. Notwithstanding there was compelling evidence that Ms.
Henry continued to require significant medical intervention including shoulder surgery in June 2009.

An insurer has a continuing obligation to adjust a claim. State Farm failed to meaningfully revisit its opinion as the 104 week period elapsed and Ms. Henry had not returned to work.

I find that State Farm unreasonably withheld income replacement benefits from Ms. Henry and as a consequence she is entitled to a special award. As State Farm essentially abdicated its responsibility to adjust the file in respect of the post-104 week period, the award should be at the higher end of that available.

The full decision can be read by clicking below.

Henry and State Farm.

Smitiuch Injury Law Wins FSCO Decision: Swerving on a Bicycle to Avoid Vehicle is an “Accident”

Smitiuch Injury Law recently won an arbitration decision, DiMarco and Chubb Insurance Company, at the Financial Services Commission of Ontario (FSCO) regarding what is deemed to be an “accident”.

Marilena DiMarco was riding her bicycle on a training ride for a charitable event when she and her group went through a town that was having a street festival.  Because the street was closed the group rode their bicycles on the sidewalk.  A van was parked half-way on the sidewalk.  When Ms. DiMarco swerved to avoid the van, she lost her balance and fell, hitting the van with her hand in the process.  Chubb Insurance refused to accept the incident as a “motor vehicle accident” as defined in The Insurance Act and Statutory Accident Benefits Schedule (SABS) and refused to pay for badly-needed treatment and other accident benefits.

Arbitrator Deborah Pressman stated the following:

In this case, Ms. DiMarco was compelled to manoeuvre on the sidewalk around a vehicle that was parked in her way.  This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle.  There was no intervening act that caused Ms. DiMarco to fall.  There were no other impediments around the automobile or near Ms. DiMarco.  Therefore, there was a direct and proximate cause between the “use or operation” of the automobile and Ms. DiMarco’s injuries.

Peter Cho, an associate lawyer at Smitiuch Injury Law Professional Corporation, represented Ms. DiMarco at the arbitration hearing.  He was assisted by Chris Jackson, Accident Benefits Manager.

The decision can be read by clicking on the attached.  DiMarco and Chubb Insurance Company of Canada FSCO Decision A10-003967

FSCO Arbitrator Recognizes 60-Day Timeline for Mediations

A recent decision by FSCO Arbitrator Jeffrey Rogers supports that a mediation can be deemed to have failed if it has not been mediated within the 60 day timeframe noted in both The Insurance Act as well as The Dispute Resolution Practice Code.

In the decision, Leone and State Farm, Arbitrator Rogers states the following:

Since the prescribed time for mediation had expired when Mr. Leone filed his Application for Arbitration, there was no jurisdictional barrier to his doing so. This conclusion is consistent with the scheme and intent of the Act, the Schedule and the Rules as they aim to promote prompt payment of benefits and speedy dispute resolution. The legislation and the Rules are all replete with fixed time limits intended to serve this purpose. Accepting State Farm’s position would mean that there is no fixed time for completing mediation. That would render meaningless the requirement in the Act and the Rules for the prompt appointment of a mediator.

Section 281.1 of the Act, section 51(1) of the Schedule and Rule 11 of the DRPC require that an Application for Mediation be filed no later than 2 years from the date the insurer provided written notice of refusal to pay an amount claimed. Accepting State Farm’s submission that the Application is not filed until a mediator is appointed would mean that an insured person does not know whether he or she has met this limitation when delivering an Application to the Commission. It would mean that the period differs from application to application and that close to 1 year of the permitted time was consumed by the delay in this case. Conceivably, if delays increase to the point where it takes 2 years to appoint a mediator, an insured person who attempts to file an Application immediately upon denial would see his or her rights extinguished, before the first step in the dispute resolution process has occurred. The Legislature could not have intended that absurd result.

Judge Declares Mediation “Failed” if not Mediated within 60 Days

A decision from the Superior Court of Justice of Ontario was released that declares a mediation by the Financial Services Commission of Ontario (FSCO) failed if it has not been mediated within 60 days of the application being submitted.

In Cornie v. Security National [2012 ONSC 905], which was heard with three other similar cases, Justice J.W. Sloan renders the following decision:

It currently appears that FSCO’s Dispute Resolution Services’ Mediation Unit is functioning without timelines and has been doing so for years.

The SABS [Statutory Accident Benefits] are for the benefit of injured motor vehicle victims and are often required in a timely fashion.

It makes perfect sense that the legislation and the DPRC [Dispute Resolution Practice Code] refer to a 60 day time limit to deal with such disputes.

In contrast to the injured victims, insurance companies are not in a vulnerable position.  While there is nothing to suggest that these insurance companies are in any way responsible for the delay in mediation, there is no evidence that the delay in mediation is of any real consequence to them.

Justice Sloan found the insurance companies’ postion that accident victims must simply wait to be “preposterous” and suggests that FSCO can continue to try to comply with the 60 day period or seek a change and/or ask for some legislative direction to extend the 60 day period in appropriate circumstances.

It remains to be seen if this motion decision will be appealed.

Personal Insurance Hit With $28,000.00 Special Award

In a recent arbitration decision through the Financial Services Commission of Ontario (FSCO), The Personal Insurance Company of Canada was subjected to a $28,000.00 special award for unreasonably withholding accident benefits from their insured.

In Hoang and Personal, Arbitrator Denise Ashby found that The Personal unreasonably withheld payment for lost educational expenses and the costs of rehabilitation support worker services for Christopher Hoang, an 11 year-old boy who suffered a catastrophic brain injury from a motor vehicle accident.

Arbitrator Ashby noted that The Personal failed to reasonably assess the medical information available and acted unreasonably in denying his claim.  She noted that The Personal’s reliance on insurer’s examinations, “…in the face of the overwhelmingly consistent opinions and reasoning of the [treatment] Team and the other professionals who followed Christopher, amounts to an unreasonable disregard of the available information relating to the two rehabilitation benefits.”

Economical Insurance To Pay Special Award

A recent Arbitration ruling by the Financial Services Commission of Ontario (FSCO) has ordered Economical Insurance to pay a $6,000.00 special award for unreasonably withholding attendant care benefits from one of their policyholders.  In the matter of Mr. S. and Economical Mutual Insurance Company, the Arbitrator identified that the insurer relied on its own surveillance and not even their own medical experts when determining the amount of the attendant care benefit.

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