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Wednesday, July 23, 2014

 
 
 

 

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Motor Vehicle Accidents

Despite restricted benefits, most claimants pay same premiums

A planned 15 per cent reduction in auto insurance premiums is modest compared to cutbacks made to available benefits since 2010, Toronto personal injury lawyer Michael Smitiuch says in Law Times.
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State Farm Barred from Denying Claimant as “Insured” Five Years After MVA

In a recent Ontario Superior Court of Justice decision, State Farm v. Bunyan [2013 ONSC 6670 (CanLII)], State Farm Insurance Company was not allowed to consider an accident benefits claimant as not being an “insured” under the policy five years after the motor vehicle accident.

This decision deals with Christian Bunyan, who was a pedestrian who was struck by a truck in Alberta in September of 2007 and suffered catastrophic injuries.  At the time of the accident he did not have a driver’s license.  He was dependent on his mother, who lived in Ontario and had a valid automobile insurance policy with State Farm.  Under Ontario law, a person who is considered insured under an Ontario policy can apply for accident benefits in Ontario if their accident occurs anywhere in Canada or the United States.

State Farm accepted the accident benefits claim and also accepted that Mr. Bunyan was catastrophically impaired.  Five years after the accident State Farm then took the position that Mr. Bunyan was not dependent on his mother and was, therefore, not deemed to be an “insured person” under the policy.  Mr. Bunyan asserted that he was dependent upon his mother at the time of the accident and that, since State Farm was raising this issue five years after the accident, he had lost the opportunity to apply for benefits through any other insurer.  In other words, if he was not considered dependent on his mother and not eligible for further Ontario accident benefits he would have no other insurer to provide his much-needed benefits.

D.L. Corbett J. ruled that Mr. Bunyan was dependent on his mother at the time of the accident and also ruled that State Farm was barred by the legal principal of estoppel from taking this position five years after the accident.  Estoppel basically means that a party is not allowed to assert a fact or a claim inconsistent with a previous position, especially when it has been relied or acted upon by others.  In other words, since State Farm had accepted that Mr. Bunyan was an insured person for five years and Mr. Bunyan had relied on that position and had not applied to other insurers because of that, State Farm was now estopped from changing their position.

The Court’s decision is also helpful because it expands on what constitutes dependency.  At the time of the accident Mr. Bunyan was living in Alberta, had recently acquired a low-paying job, had recently separated from his girlfriend and their son, and was relying on his mother for financial support.  As Judge Corbett stated in his decision, “It can be difficult to determine precisely when an adult child ceases to be dependant on his parents.  Functionally, the change from dependence to independence is more a transition than an event.”

Balancing Lower Premiums with the Bottom Line

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.

Insurance coverage provisions need to remain broad

The Ontario Court of Appeal decision to deny an insurer’s attempt to tie attendant-care benefits to the lost wages of family members acting as caregivers is an appropriate response to provisions that should be viewed broadly, Toronto personal injury lawyer Michael Smitiuch says in Law Times.

To read the complete article go to: Advocate Daily

Law Times Article Quotes Michael Smitiuch on Economic Loss issue for Attendant Care

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.

FSCO Arbitrator: Insurer Cannot Dictate Claimant to Have Amputation as a Remedial Procedure

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.

Michael Smitiuch Quoted in Law Times Article on Auto Rate Cuts

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.

Notice of Insurer’s Examinations Must be “Straightforward and Clear”: FSCO

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.

 

Annual Accident Benefits Seminar for Health Care Professionals on September 25th

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 keithsmitiuch@smitiuchinjurylaw.com.

A copy of the invitation can be accessed by clicking here.

FSCO: No Raise for Treating Professionals in 2013

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.

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