Motor Vehicle Accidents
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.
The Ontario Auto Insurance Anti-Fraud Task Force Steering committee is seeking public input on a number of potential recommendations prior to their final report in the fall of 2012.
These recommendations include:
- Regulation of health clinics
- Regulation of the towing industry
- Enhanced authority for FSCO to regulate the business practices of health care treatment and assessment facilities
- Tightened controls on the delivery of Accident Benefits, including requiring the patient’s signature on invoices before they are submitted, a second Examination under Oath, and billing claimants $500 if the claimant fails to attend an insurer’s examination. Also being considered is requiring insurers to provide itemized statements to claimants every 60 days
- Amending the consent provisions of the auto insurance applications to provide greater certainty about the ability to share information for the purpose of detecting and preventing fraud.
- Provide insurers with broader civil immunity to protect them from lawsuits for reporting suspicious behaviour to regulators and the police
- A website devoted to informing those injured in motor vehicle accidents about accident benefits and how to detect and report suspicious or inappropriate behaviour
- Mandatory disclosure by insurance companies to the public about how they select and supervise their preferred providers of services – including independent medical examinations
- For FSCO to hire appropriate staff and resources to carry-out these recommendations
The entire update can be read by clicking here.
A recent Ontario Court of Appeal ruling confirmed that it is possible for someone injured in a motor vehicle accident to work but still be entitled to a Non-Earner Benefit.
In the decision, Galdamez v. Allstate Insurance Company of Canada [2012 ONCA 508], Hayfa Galdamez returned to work shortly after her accident. Because of this, Allstate took the position that she was not entitled to income replacement benefits. However, even though she was able to work, her medical professionals were of the opinion that she met the test for a non-earner benefit; namely, that she suffered a complete inability to carry on a normal life.
It has been well established in case law that entitlement to a non-earner benefit goes beyond the ability to simply go through the motions of everyday life.
The Court stated the following:
 Although I consider it unlikely that persons who can work at their pre-accident jobs following an accident will often meet the disability standard for non-earner benefits, I do not rule out such a possibility.
 For example, in jobs where mobility is not a requirement (e.g. department store greeter, telemarketer, etc.) and the job was not of great importance in the claimant’s pre-accident life, it may be possible for a claimant who returns to his or her pre-accident employment following an accident to satisfy the test for non-earner benefits.
This decision can be read in its entirety by clicking here.
Dr. Pierre Côté has been awarded the consulting contract by the Financial Services Commission of Ontario (FSCO) to develop the Minor Injury Protocol. Dr. Côté is Associate Professor, Dalla Lana School of Public Health, at the University of Toronto.
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.
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 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.
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.
An article in today’s Toronto Star addresses the issue of an increase in denials of treatment plans by auto insurers for people who are injured in automobile accidents.
It is reported that the Ontario Government intends to hold public hearings on auto insurance.
You can read the entire article by clicking here.
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.