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Friday, December 8, 2017

 
 
 

 
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FSCO Decisions

First MIG Decision Released by FSCO

The Financial Services Commission of Ontario (FSCO) has released the very first decision with respect to injuries that fall within the Minor Injury Guidelines (MIG).

In Lenworth Scarlett and Belair Insurance Company Inc. [FSCO A12-001079], Arbitrator John Wilson has provided clarification regarding what injuries subject an insured person to a maximum of $3,500.00 in medical and rehabilitation benefits.

While Mr. Scarlett suffered soft-tissue (whiplash) injuries in his motor vehicle accident, he was also diagnosed with Temporal Mandibular Joint Syndrome, as well as psychological issues.  Despite the provision of documentation that supported injuries beyond those subject to the MIG, Belair maintained its position that he was subject to the MIG limits for accident benefits.  As Arbitrator Wilson pointed out, “In essence, Mr. Scarlett’s attempts to claim certain benefits from Belair were being rebuffed because Belair took the position that he was within the MIG and either the benefits were not payable or they were in excess of what was required to be paid under that approach.  This appeared to be a major stumbling block since, even when Mr. Scarlett provided further evidence of complicating features of his claim that in his mind took it outside of the MIG framework, he was met with the same response.”

Arbitrator Wilson outlined the critical elements of the MIG as follows:

  • Persons who suffer minor injuries (as defined) should be treated appropriately, with early, quick and limited intervention to assist in recovery.
  • The decision or not to treat an insured either within the Minor Injury Guideline or not should be made on the basis of credible medical evidence and not on speculation.
  • Even those persons who otherwise might be within the MIG can be treated outside of theGuideline if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury.

Arbitrator Wilson then goes on to determine that the onus is on the insurer, not the insured, with respect to determination of a person’s injuries falling within the MIG.  He states, “I accept that in the absence of clear legislative direction that would override the existing jurisprudence as to burden of proof, it remains the Insurer’s burden to prove any exception to or limitation of coverage on the civil balance of probabilities.”

The Arbitrator concludes his decision as follows:

The insurer is in effect mandated to make an early determination of an insured’s entitlement to treatment beyond the MIG.  In essence, because of the necessarily early stage of the claim when the MIG is applied, the determination must be an interim one, one that is open to review as more information becomes available.

What is not is the “cookie cutter” application of an expense limit in every case where there is a soft tissue injury present.  Such does not respond either to the spirit of the accident benefits system or the policy enunciated in the Guideline of getting treatment to those in need early in the claims process.

While it is quite possible that the majority of claimants can be accommodated within the MIG, averages are misleading when applied to individual cases.  Each case merits an open-minded assessment, and an acceptance that some injuries can be complex even when there are soft tissue injuries present amongst the constellation of injuries arising from an accident.

 

Ontario Court of Appeal Upholds “60 Day” Rule for FSCO Mediations

The Ontario Court of Appeal has upheld a decision from the Superior Court of Justice of Ontario that declared 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 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.  This decision was posted in our blog on February 9, 2012.

This ruling means that, when an accident benefits insurer has denied a benefit, the insured can apply for mediation at FSCO and, 60 days after the mediation has been filed, the insured can then move on to either arbitration or a lawsuit against the insurer if the mediation has not been conducted within that timeframe.

The Court of Appeal concluded their decision by stating the following:

[56]        The legislative scheme for resolving disputes about statutory accident benefits requires that insured persons resort to a mandatory mediation process before commencing a court proceeding or submitting their disputes to arbitration. The Act, the regulations and the DRPC make it clear that this process is intended to be completed within 60 days from the filing of an application for mediation with FSCO, unless the parties agree to an extension of time. The scheme postpones the right of insured persons to commence civil actions against their insurer in order to allow the mediation process to be completed within the time prescribed, but leaves them free to commence actions once that period has expired.

Ontario Court of Appeal Rules on Pastore Decision in Favour of Claimants

A major decision with respect to the definition of “catastrophic” under the Statutory Accident Benefits Schedule was released by the Ontario Court of Appeal today.

It its decision, Pastore v. Aviva Canada [2012 ONCA 642], the Court has supported the findings of the Director’s Delegate at the Financial Services of Ontario, who decided that only one functional impairment due to a mental or behavioural disorder at the marked level is necessary to declare a person’s injuries as catastrophic.  Furthermore, the decision supports that a marked psychological impairment caused by physical pain is valid for the purpose of determining a catastrophic impairment.

The decision can be read in its entirety by clicking here. Pastore Appeal

 

Attendant Not Required to Provide Academic Records to AB Insurer

An arbitrator at the Financial Services Commission of Ontario (FSCO) has ruled that a person providing attendant care for an insured is not required to provide their academic records to the accident benefits insurer.

In Mary Anthonipillai and Security National Insurance Co./Monnex Insurance Mgmt. Inc. [FSCO A11-001168] the daughter of the claimant, Mary Athonipillai, was providing housekeeping and attendant care services for her mother while she was attending university.  The insurer, Security National, requested a copy of the daughter’s academic records because it took the position that the amount of attendant care and housekeeping services provided seemed excessive if the daughter was attending school at the same time.  It was unknown if she was a part-time or full-time student and the daughter ignored all requests from the insurer for this information.  Security National believed that the lack of this information was prohibitive to any meaningful settlement discussions.

Arbitrator Jessica Kowalski stated,

I am not persuaded that the records are so relevant that their non-disclosure now would prejudice a just and fair hearing so that I should therefore set aside privacy concerns around documents that contain information personal to a third party but none about a party to this proceeding.
Nor am I persuaded that the academic schedule is as probative as Security National asserts. That schedule will not disclose how often, or even whether, Ms. George attended her classes.
For these reasons, the motion is dismissed.

Attendant Care and Treatment can be Claimed Simultaneously

A recent decision by the Financial Services Commission of Ontario (FSCO) confirms that an insurer cannot necessarily deduct attendant care benefits from times when a claimant is receiving medical or rehabilitation treatment.

In Ms. T.N. and The Personal Insurance Company of Canada [FSCO A06-000399] the Arbitrator Suesan Alves stated the following:

The Personal submitted that it should be permitted to deduct chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker treatment from any award of attendant care benefits. I disagree.

The benefits that The Personal seeks permission to deduct are provided under section 14 and 15 of the Schedule. Attendant care benefits are provided under section 16 of the Schedule. Each section of the Schedule provides for different and distinct services.

The focus of the Schedule is to provide services which meet the needs of an insured person. Under the statutory scheme, an insured person is entitled to medical, rehabilitation and attendant care benefits based on the criteria of need or necessity and reasonableness. In this context, it seems an odd concept to contemplate deducting one equally necessary benefit from another. If that were permissible, then an insured person would be required to choose, for example, between receiving assistance with a bath from his or her attendant, or receiving a physiotherapy treatment.

I am not persuaded that double payment would result from the provision of both attendant care and medical and rehabilitation benefits. Although the Form 1s filed by the Applicant contemplate the provision of attendant care 24 hours per day, 7 days per week, the rate prescribed for care in the completed forms is $7.00 per hour. Effective March 31, 2010, the minimum wage in Ontario became $10.25 per hour.

In a letter dated October 9, 2008, the claims handler informed counsel for the Applicant that the cost of the services of a certified support worker from a private agency which provides attendant care services in Ms. N’s area is $21.00 per hour. If Ms. N purchases attendant care services from that agency, she will be able to purchase approximately eight hours of attendant care per day.

I do not see attendant care and treatment as being mutually exclusive. Had the Legislature intended to permit the deduction of medical and rehabilitation benefits from attendant care benefits it could easily have done so expressly. For these reasons, I am not persuaded that the Legislature intended that other benefits would be deducted from attendant care. For these reasons, I reject The Personal’s submission that I permit the deduction of chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker from any award of attendant care benefits.

Health Care Providers: Congratulations, You’re Getting A Raise!

The Finanacial Services Commission of Ontario (FSCO) has released the 2012 Professional Fee Guidelines.

According to the FSCO website, the revised guideline increases the maximum hourly rates by 2.9 per cent.  This increase is based on the 2011 Consumer Price Index (CPI) and applies to services rendered on or after July 14, 2012.

You can read a copy of these guidelines by clicking on the line below.

2012 FSCO Fee Guidelines

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.

Medical and Legal Communities Speak Out Against Proposed Changes to “Catastrophic” Definition

The Ontario Trial Lawyers Association (OTLA) and Alliance of Community Medical and Rehabilitation Providers has launched a massive media campaign against proposed changes to the definition of a catastrophic impairment for victims of motor vehicle accidents.

The changes being considered, already posted on our blog (you can access this blog article by clicking here), would significantly reduce the number of accident victims with serious injuries from having their claims deemed as catastrophic.

For example, a paraplegic who is able walk just a short distance would not be deemed catastrophic, even though their medical and rehabilitation needs would be very significant.  Under the proposed changes, these individuals would have to pay for any treatment beyond the non-catastrophic medical and rehabilitation benefits limit of $50,000.00.  Most rehabilitation services are not covered under OHIP.

If an individual’s injuries are deemed “catastrophic” their accident limits change as follows:

  • Medical and Rehabilitation benefits increase from $50,000.00 over 10 years to $1,000,000.00 over a lifetime
  • Attendant Care benefits increase from $36,000.00 over two years (to a maximum of $3,000.00 per month) to $1,000,000.00 over a lifetime (to a maximum of $6,000.00 per month)
  • The right to the services of a case manager to help coordinate their medical and rehabilitation needs
  • Housekeeping and Home Maintenance benefits (available for non-catastrophically injured victims, but only if optional benefits were purchased under their insurance policy)

The advertisement will run in major newspapers across Ontario over the course of this week and the next.

Please click on the link below to see the advertisement.

Catastrophic Injuries Media Campaign Ad

These changes would be in addition to the massive cutbacks to accident benefits implemented in September 2010.  Auto insurers are currently reporting significant profit margins.

We encourage all concerned individuals to contact their local Member of Provincial Parliament (MPP) immediately to express their concerns with these proposed changes.

FSCO Releases 2012 Draft Statement of Priorities

The Financial Services Commission of Ontario (FSCO) has released its draft Statement of Priorities for 2012.

Many of the priorities focus on changes to the auto insurance sector.  They include the following:

  • Continuing to assess the extent of auto insurance fraud and consider the recommendations of the task force when their report is released in the Fall of 2012;
  • Exploring ways to utilize the Health Claims for Auto Insurance (HCAI) system to detect and prevent fraud;
  • Implement auto insurance recommendations made in the Auditor General of Ontario’s 2011 Annual Report;
  • Undertake long-term auto insurance reform initiatives, including review of the Minor Injury Group (MIG) protocol and changes to the catastrophic impairment criteria;
  • Reduce the mediation backlog; and
  • Conduct market conduct audit reviews of compliance with the 2010 auto insurance reforms including Statutory Accident Benefits;

The entire draft Statement of Priorities can be read by clicking here.

Ontario Budget Brings Announcement of Auto Insurance Reforms

Further reforms to Ontario’s Auto Insurance Industry are planned as part of the 2012 Budget announcement made yesterday in Toronto.  Two of these measures include changes to the
definition of catastrophic impairment and further enforcement of auto insurance fraud.

In 2010, the government made major changes to the auto insurance system. As a result, premiums are stabilizing for drivers across Ontario. Building on the success of the 2010 reforms, the government is taking action to tackle fraudulent and abusive practices, base insurance benefits on scientific and medical principles, and ensure its regulator continues to identify and respond to new and emerging issues. The government’s ongoing work in the area of auto insurance, including fraud, should continue to reduce the pressure on premiums.

Some of the key changes to be implemented include:

  • Regulation of health clinics;
  • Other gaps in regulation;
  • Establishment of a dedicated fraud unit;
  • Consumer education and engagement strategy;
  • A single web portal for auto insurance claimants;
  • Development of new Minor Injury Guideline;
  • Make the report of the Superintendent of Financial Services on catastrophic impairment public and move forward to propose regulatory amendments in this area;
  • Engage in a review of the automobile insurance dispute resolution system;
  • Strengthen the [FSCO] Superintendent’s authority regarding rate and risk classification approvals;
  • Support a Superintendent’s review of the profit provision benchmark in auto insurance rate change approvals;
  • Work with insurers to explore the implications of voluntary usage-based auto insurance policies;
  • Harmonize the timing of statutory automobile insurance reviews;
  • Improve solvency supervision of Ontario insurers
  • Update Ontario’s Insurance Act by:
    • Proposing amendments to the life insurance accident and sickness insurance parts of the Insurance Act to enhance consumer protection, reduce regulatory burden, and harmonize
      with other Canadian jurisdictions; and
    • Enhancing the effectiveness of its insurance regulation by proposing amendments to give the Superintendent of Financial Services the authority to impose administrative monetary penalties in the insurance sector.

You can read the Government’s comments on the insurance industry by clicking here.

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