Servicing Toronto, Brantford, Simcoe, Hamilton and surrounding areas.
Thursday, November 15, 2018


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Motor Vehicle Accidents

FSCO Allows Application for Accident Benefits almost 2.5 years after MVA

A recent Arbitration decision from FSCO has allowed for an application for accident benefits to be submitted approximately 2.5 years after the motor vehicle accident. In S.R. and State Farm the insured developed mental health impairments of depression and anxiety as a direct result of caring for her husband who sustained a brain injury and a personality change in December 2001 in a motor vehicle accident. While she retained counsel, she instructed him to take no steps in the matter. It was only after her husband’s tort and accident benefits claims were settled that she could focus on herself, obtain medical treatment and avail herself of accident benefits. Arbitrator Alves accepted that this was a reasonable explanation for the delay in claiming accident benefits.

FSCO Catastrophic Panel Provides Recommendations for Assessors

The Catastrophic Impairment Panel is recommending that medical doctors or doctorate-level neuropsychologists (for brain injury impairments) lead the evaluations for catastrophic impairments. They are also recommending additional training/certification for those assessing catastrophic impairments.

A link to the panel’s report can be found by clicking here.

The Toronto Sun – Opinion on proposed Catastrophic Injury Changes

Please click here to read a very good opinion on the proposed changes to the catastrophic definition under the SABS.

FSCO Releases New Bulletin

The Financial Services Commission of Ontario (FSCO) has released a new bulletin that includes new Professional Services Guidelines, Amended Settlement Disclosure Notice, and an Amended Application for Accident Benefits.

You can read the Bulletin by clicking here.

Changes to Insurance Act will allow insurers to demand more information from treatment providers

An amendment is in process under Ontario’s Insurance Act to allow insurers to refuse to pay for treatment plans until the treatment providers produce reasonable information.

Ontario Regulation 194/11 will take effect on July 1, 2011 and gives insurers the authority to request information from treatment providers, who will have 10 business days to produce it after receiving the request. This information includes:

• the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment;
• a statutory declaration as to the circumstances that give rise to the invoice, including particulars of the goods and services provided; and
• the name and full address of the provider, and of every provider that provided any of the goods or services referred to in the invoice.

If the information is not provided the insurer does not have to pay the outstanding invoice and no interest will be accrued on information not provided within the 10 day framework. Furthermore, the outstanding payment cannot be mediated if the information has not been provided to the insurer, if the information requested by the insurer is reasonable.

We encourage all health providers to ensure that they provide all reasonable information requested by the insurer in a timely manner. If you are not sure if the information is reasonable, we recommend discussing the insurer’s request with your patient’s legal representative.

It’s bicycle season!

It’s bicycle season! The weather is getting warmer (and dryer?) and the end of school is in sight, perfect reasons to dust off the old wheels and take to the road. But before our kids do, we as parents need to remind them about bike safety and wearing a helmet. Wearing a helmet is not just a matter of having something on your head, it needs to fit properly and it needs to be worn correctly.

The Ontario Trial Lawyers Association (www.otla.com) started an initiative in 2002 called “Helmets on Kids”. The program is intended to put a helmet on every child who needs one, provide safety education and awareness about bicycle helmet use. Participating OTLA members distribute, free of charge, new helmets through their local community partners. Since 2002, over 12,000 helmets have been distributed and this year 250 helmets while be distributed in Brantford by Smitiuch Injury Law and the Children’s Safety Village of Brant (www.csvbrant.ca).

Wearing a bicycle helmet is important. According to OTLA:

• Bicycle helmets can reduce the risk of a brain injury by up to 88%.
• It is the law in Ontario that children under the age of 18 MUST wear a bicycle helmet while riding a bicycle on the road or sidewalks.
• Helmets more than 5 years old should be replaced because they lose their protective abilities over time.
• You should replace your helmet if it has been in a hard fall or crash or has been dropped on a hard surface even if there is no visible damage.
• Baseball caps, hats, headphones, large hairclips and other such items should not be worn under a bicycle helmet.

So before your children take to the streets on their bicycles this summer, make sure they are wearing a helmet!

Public Transit Motor Vehicle Accidents about to Become “Non-Accidents”

On March 29, 2011, the Ontario Legislature unveiled its pre-election budget, in Bill 173, otherwise known as the Better Tomorrow for Ontario Act (Budget Measures), 2011. The Budget didn’t raise any eyebrows. The Canadian Press reported:
There’s “not a single new tax cut or credit to be found, just a smattering of strategic investments that will provide insurance for more farmers, expand breast cancer screenings and add new college and university spaces.”
But Schedule 21 of Bill 173 contains some proposed changes to the Insurance Act that are bound to cause a stir in the insurance industry: Firstly, a passenger injured in a public transit vehicle, which has not collided with an automobile or other object, will no longer be entitled to claim accident benefits under section 268 of the Insurance Act as a result of the incident. Meanwhile, the owner and driver of the public transit vehicle will no longer be considered “protected defendants” under section 267.5 of the Act. Schedule 21 provides:
3. (4) Section 267.5 of the Act is amended by adding the following subsection:
Same, public transit vehicles
(6.1) In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident.
4. Section 268 of the Act is amended by adding the following subsection:
Exception, public transit vehicles
(1.1) Despite subsection (1) and the Statutory Accident Benefits Schedule, no statutory accident benefits are payable in respect of an occupant of a public transit vehicle, in respect of an incident that occurs on or after the date this subsection comes into force, if the public transit vehicle did not collide with another automobile or any other object in the incident.
The “no crash, no cash” scheme will work as follows: Where no collision or crash has occurred, any tort claims for injuries against a public transit authority (owner or driver) would be covered and addressed within the tort system. The plaintiff would no longer need to establish a threshold injury and there would be no damages deductible. But they also would not be entitled to any accident benefits from any insurer (neither there own, nor the public transit’s insurer, nor the insurer of any other vehicle involved in the accident).
The purpose behind the proposed changes is obvious: These days, almost any injury that occurs to a passenger on a bus is an “accident” that entitles the person to access accident benefits. According to FSCO arbitrators, almost any incident that happens once a passenger leaves a bus (even meters away from the bus) is also an “accident”. Often the claimant won’t be covered under any other insurance (might be one reason that they take the bus), so such accident benefit claims would fall to the insurer of the public transit vehicle. Often such incidents aren’t reported at the scene and the transit company isn’t even aware of such incident until their insurer receives an application for accident benefits.
So it is clear the Legislature (and public transit) is, among other things, trying to crack down on suspicious accident benefit claims by passengers who get injured while riding the bus (or streetcar). The changes will likely save the insurers of public transit sizable amounts of money each year by not having to pay any accident benefits in incidents that do not involve a collision.
The proposed changes could cause some problems for automobile insurers. For example, suppose Nick is on the bus waiting to get off at the next stop. As the bus approaches the stop, suddenly a car changes lanes and forces the bus driver to slam on the brakes. Nick falls and gets hurt. There is no contact between the vehicles.
Under the current scheme, Nick would be able to claim accident benefits. He would also sue the public transit company/driver and the owner/driver of the other vehicle (if the identity is known, or perhaps Nick’s own insurer under the unidentified motorist provisions of his policy, if he has one).
But under the proposed scheme, Nick would not be entitled to claim accident benefits as a result of this incident. He would still be able to sue the public transit company/driver and the driver of the vehicle that cut off the bus. The public transit company would not be a protected defendant under section 267.5 of the Insurance Act, which would make up for the loss of accident benefits that Nick couldn’t claim (no threshold, no deductibles, etc).
It appears that the owner and driver of the other vehicle would still be “protected” under section 267.5. However, their insurer would not get a “discount” for any accident benefits that Nick would have received under the current scheme as result of the accident — since he would not be entitled to claim any.

FSCO Releases Draft Statement of Priorities for 2011

FSCO has released a draft of its statement of priorities for 2011. Some of the activities being considered are:

– Audit reviews of compliance with 2010 auto reforms, including Statutory Accident Benefits
– Work with stakeholders to identify measures that will reduce fraud and abuses in the auto insurance industry
– Undertake long-term initiatives from the 2010 auto insurance reforms – Minor Injury Treatment protocol, catastrophic impairment definition and closed claims study
– Consider additional tools in enforcement of insurance regulation such as administrative monetary penalties
– Initiate electronic mediation scheduling and explore feasibility of private sector medation/arbitration service providers to assist with increased workload resolution services.

FSCO is inviting comments on this draft by June 7, 2011.

Ontario task force to tackle auto insurance fraud

The Ontario government is setting up a task force to advise it on how to deal with auto insurance fraud. Will it help reduce insurance premiums?


Read the March 30, 2011 Globe and Mail article for more details.

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