Motor Vehicle Accidents
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.
The Spring 2013 issue of the Smitiuch Injury Law newsletter, disclosure, is now available.
- Have you purchased any of the consumer products that have been involved in a lawsuit or major recall?
- I think you will be surprised at some of the names on the list of famous people with law degrees.
- Did you know the maximum a person can receive for pain and suffering in Canada is $345,584? Read the article on Damages for Pain & Suffering to get all the details.
These are just a few of the interesting articles in this issue.
The Ontario Government has made public the regulatory changes that will be made to help combat automobile insurance fraud in the province. All changes are scheduled to come into effect on June 1, 2013.
The following changes will be in effect for the Statutory Accident Benefits Schedule (SABS):
- The insurer is bound to pay only to the maximum rates established under the Guidelines for all medical and rehabilitation benefits, except for transportation.
- The insurer is allowed to have an additional Examination Under Oath of an claimant for the purpose of determining the priority of accident benefits insurers.
- An insurer will be required to give all reasons, not just a medical reason, for denying a medical or rehabilitation benefit.
- The insurer can demand:
- Confirmation in writing that the goods or services were provided to the insured person, and/or
- A statutory declaration as to the circumstances that gave rise to the invoice.
- This information must be provided within 10 business days after receiving the request; and
- An invoice is not overdue and no interest accrues on it during any period during with the insured person has not provided the information within the above timeframe.
- While the insurer is still obligated to provide regular statements to the insured as to what has been paid out on a claim, they may be required to provide additional information if the Superintendent approves a benefit statement form.
The following changes will be in effect for the Unfair or Deceptive Acts or Practices statute:
- It will be a deceptive act or practice for anyone other than a lawyer or paralegal to require, request or permit a person to sign a blank OCF form.
The legal reference for these changes are O.Reg 14/13, O.Reg 15/13, O.Reg 16/13.
The Ontario Government has announced that it will introduce regulatory amendments aimed at tackling automobile insurance fraud in the Province.
According to their website, measures will be taken as follows:
- Require insurers to provide claimants all reasons for denying a claim.
- Give claimants the right to receive a bi-monthly, detailed statement of benefits paid out on their behalf.
- Increase the role of claimants in fraud prevention (e.g. require them to confirm attendance at health clinic).
- Make providers subject to sanctions for overcharging insurers for goods and services and banning them from asking consumers to sign blank claim forms.
The entire news release can be read by clicking here.
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:
 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.
The Ontario Automobile Insurance Anti-Fraud Task Force Steering Committee has released its Final Report to the Minister of Finance.
The Committee makes several recommendations, including:
- The formation of an Anti-Fraud Awareness Implementation Group;
- Require insurers to disclose publicly how they choose and assess the performance of businesses and professionals they recommend to consumers or refer them to see, such as independent medical examiners;
- Require insurers to ensure their public information on how consumers may register a complaint is simple to understand and easy to locate;
- The government should reduce uncertainty and delay for those who have legitimate auto insurance claims;
- Implement a province-wide licensing scheme for the towing industry;
- Collect information about towing expenses to facilitate analysis of relationships between tow operators, collision repair facilities and health care clinics;
- Take steps to reduce unreasonable storage costs for vehicles damaged in a collision;
- Permit insurers to collect a cancellation fee from claimants who fail to attend a medical examination at the agreed time, without reasonable notice or explanation;
- Insurers should move aggressively to establish an organization that would pool and analyse claims data to identify potential cases of organized or premeditated fraud;
- Require the licensing of health clinics that treat and assess auto insurance claimants and empower FSCO to regulate their business practices, as well as oversee and audit the business and billing practices;
- Additional powers for FSCO to conduct fraud investigation and enforcement;
- Require claimants to confirm attendance at treatment facilities and receipt of goods and services billed to insurers;
- Require insurers to itemize the list of invoices they have received when they provide a benefit statement to a claimant every two months;
- Allow insurers to suspend income replacement benefits when there is compelling evidence the claimant has submitted a fraudulent claim in conjunction with an effective, timely and robust dispute resolution system; and
- Health regulatory colleges should enhance their understanding of the consequences associated with fraud and ensure that complaints are investigated and lead to disciplinary action where appropriate, as well as develop professional standards, guidelines and best practices to improve the quality of independent medical assessments of auto insurance claimants conducted by their members.
The entire report can be read by clicking here.
The Financial Services Commission of Ontario (FSCO) has released a new Assessment and Treatment Plan (OCF-18) form, a new Treatment Confirmation Form (OCF-23) and a new Auto Insurance Standard Invoice (OCF-21) for use effective November 1, 2012. Older versions of these forms will not be allowed as of that date.
You can download these new forms directly from our website by clicking on the links below:
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
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.
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.