1.866.621.1551
Servicing Toronto, Brantford, Simcoe, Hamilton and surrounding areas.
Tuesday, April 25, 2017

 
 
 

 
Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Client Involved in an “Accident”: FSCO Arbitrator

Our firm successfully represented a client in an arbitration hearing through the Financial Services Commission of Ontario (FSCO).

D.C. (initials are being used, at our client’s request) was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground.  D.C. does not recall the details of the actual impact, but did recall being struck by a white vehicle.  The vehicle did not stop and there were no known witnesses.

D.C.’s bicycle was damaged to the point that he could not ride it home.  The damage was seen by his wife and his brother-in-law.  Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash.  D.C. was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence.  Additionally, the incident was not reported to police, as D.C. did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses.

He went home, scraped and bruised, but otherwise felt fine.  The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma (acquired brain injury), which necessitated a full craniotomy.  Several months later, in the course of his rehabilitation, he was advised to seek legal advice, since he could be eligible for accident benefits.  D.C. called, and then retained, Smitiuch Injury Law.

An accident benefits claim was started with D.C.’s insurer, Aviva Canada.  Aviva accepted D.C.’s accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits.  However, once some benefits were denied and were then disputed, Aviva took the position that D.C. was not involved in an “accident”, as defined in the Statutory Accident Benefits Schedule (SABS).

Luke Hamer, assisted by Chris Jackson (Accident Benefits Manager), represented D.C.  Both the client, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle.  Based on their description, a forensic engineer was retained, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle.

Based on the testimony of the witnesses, the arbitrator ruled in favour of D.C.  As a result, he will continue to be eligible to receive accident benefits, which he will likely require for the rest of his life.

The redacted arbitration decision can be read it its entirety by clicking on the link below.

DC and Aviva Canada (Redacted) dated July 3 2015

Smitiuch Injury Law Obtains Justice for Clients at Trial

We are very proud of Peter Cho and Luke Hamer, both of Smitiuch Injury Law, in the recent trial win on behalf of Shivam Bhatt.

Shivam was 11 years old at the time and was seriously injured on a ride at Toronto’s Centre Island.

You can read the decision in its entirety by clicking on the link below.

Bhatt et al. v. William Beasley Enterprises Limited Released June 12, 2015

Job Posting – Accident Benefits Clerk

Smitiuch Injury Law continues to grow and we are currently looking for an Accident Benefits Clerk for our Accident Benefits Department.

Job Description:

  • Complete OCF forms per the SABS requirements
  • Prepare documentation for FSCO such as Application for Mediation and Application for Arbitration
  • Request medical records from hospital and other medical providers
  • Schedule client appointments such as medical examinations
  • Communicate regularly with insurance adjusters to ensure clients receive the benefits they are entitled to under the SABS and that they are received in a timely manner
  • Communicate regularly with clients to provide updates on the status of benefits and answer queries that they may have

The successful candidate must possess the following qualifications:

  • Licensed LSUC Paralegal designation
  • Law Clerk Diploma or Institute of Law Clerks of Ontario Certificate
  • Previous experience in accident benefits and working knowledge of the SABS and FSCO procedures are definite assets
  • Experience with Time Matters, PCLaw, Primafact and MS Office are definite assets
  • Ability to manage multiple priorities and multiple files in a fast paced environment
  • Excellent written and interpersonal skills
  • Excellent attention to detail
  • Ability to work independently and as part of a team

Qualified applicants are invited to apply via email to: [email protected]

Please note that only selected candidates will be contacted.

How safe are you in a hospital? Far from it, just ask the Tiwari’s whose son committed suicide under hospital care.

Case Raises Concerns About Standard of Hospital Care

Toronto (February 25, 2015) – A family, whose son was able to commit suicide while he was supposed to be under close observation, has filed a $12.5 million wrongful death and breach of privacy suit against William Osler Health System and members of its staff.

On June 26, 2014, 20-year-old Prashant Tiwari of Brampton took his own life, while he was supposed to be under close staff supervision in the psychiatric unit of Brampton Civic, one of William Osler’s two hospitals. Although he was to be checked by staff every 15 minutes, Prashant was left unattended for over two and a half hours. His body was found later in the hospital washroom.

“Hospitals are considered safe havens for those at risk,” said Michael Smitiuch, of Smitiuch Injury Law PC, the lawyer representing the Tiwari family. “This family is raising questions and awareness about obvious short comings in the care of high risk patients.”

A press conference was held on February 25, 2015, to help create awareness about this important issue.

IMG_20150225_104613

Rakesh Tiwari, Michael Smitiuch and Gautam Tiwari answer questions posed by the media.

IMG_20150225_104708

This important issue was covered extensively by the media.

 

For further information contact: Michael Smitiuch at [email protected] or 416-621-1551.

New FSCO Decision Limits Timelines for Examination Under Oath for Specified Benefits

NOTE: This arbitration decision was overturned on appeal.  A petition for Judicial Review was filed, but later abandoned.

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that limits an insurer’s ability to request an Examination Under Oath in certain cases.

In the decision Neil Williams and State Farm Mutual Automobile Insurance Company [FSCO A14-001463], Arbitrator Maggy Murray considered whether or not an insurer was prohibited from providing a notice of an Examination Under Oath more than 10 business days after receiving an application and completed disability benefit for a specified benefit.

A specified benefit is an income replacement benefit, caregiver benefit, non-earner benefit, or housekeeping and home maintenance benefit.

Section 36(4) of the Statutory Accident Benefits Schedule (SABS), reads as follows (emphasis added):

(4)  Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33 (1) or (2).

Section 33 (1) and (2) of the SABS reads as follows:

(1)  An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

2. A statutory declaration as to the circumstances that gave rise to the application for a benefit.

3. The number, street and municipality where the applicant ordinarily resides.

4. Proof of the applicant’s identity.

(2)  If requested by the insurer, an applicant shall submit to an examination under oath, but is not required,

(a) to submit to more than one examination under oath in respect of matters relating to the same accident; or

(b) to submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition.

Based on this decision (and a plain reading of the legislation), an insurer must provide notice of an Examination Under Oath for a specified benefit within 10 business days of receiving an application and completed disability certificate and an insured is not obligated to submit to an Examination Under Oath if notice has not been provided within that time period.

This decision can be read in its entirety by clicking on the link below.

Neil Williams and State Farm – Examination Under Oath, Specified Benefit

FSCO Announces Amendments to SABS, Service Provider Regulations, etc.

The Financial Services Commission of Ontario (FSCO) has released a bulletin announcing changes to the Statutory Accident Benefits Schedule (SABS), service provider regulations, administrative penalties and eligibility for transportation expenses.

Below are the highlights:

  • Effective December 1, 2014, both licensed and unlicensed service providers and provide goods and service to auto insurance claimants.  Licensed service providers can receive payment directly from insurers, which unlicensed service providers cannot.  Unlicensed providers must complete the OCF-21 form (Auto Insurance Standard Invoice) on HCAI, print it, and provide a copy to the claimant.
  • Effective January 1, 2015, the current interest rate of 1% per month, compounded monthly, will continue to apply.  However, once a mediation proceeding has commenced, the interest rate will then change to the prejudgement interest rate described in the Courts of Justice Act for past pecuniary loss.  This will be calculated from the date on which a mediation proceeding commenced and ending on the date a settlement is reached or a decision is issued.  The current prejudgement interest rate is 1.3% per annum.
  • It is now considered to be an unfair or deceptive act or practice if an unlicensed provider advertises as a licensed provider.
  • There is now an exemption allowing licensed service providers to seek direct payment for a listed expense provided under the SABS from anyone other than an insurer.
  • Specifies penalties for non-compliance with the newly added requirements.
  • Reminds insurers that “authorized transportation expenses” apply only expenses incurred by the insured person or an aide.  It notes that service provider mileage costs are subject to FSCO’s Professional Service Guidelines, which states that insurers are not liable for any other costs beyond what is permitted under the Professional Service Guideline.

The bulletin can be read in full at the following link:

http://www.fsco.gov.on.ca/en/auto/autobulletins/2014/Pages/a-14-14.aspx

Genie Boom Crane is an “Automobile”: FSCO Arbitrator

Note: This decision was overturned on appeal.

A new arbitration decision from the Financial Services Commission of Ontario (FSCO) has determined that a “Genie Boom Crane” is an “automobile” under the Statutory Accident Benefits Schedule.

The decision, Joseph Beattie and Unifund Assurance Company [FSCO A13-005289], describes the Genie as, “a four-wheeled mobile crane, propelled by its own motor”, which is used to elevate a worker to perform a maintenance function.

In this particular case, the Applicant, Mr. Beattie, was operating the crane on a private parking lot.  The ground level collapsed into the level below, injuring him.  Mr. Beattie applied for accident benefits through his own insurance company, Unifund Assurance.  Unifund took the position that the crane was not an “automobile” at the time and place when the structure collapsed and was, therefore, not an “accident”.

The arbitrator found that, since the crane was a “vehicle propelled or driven otherwise than by muscular power” and did not meet the specific exclusions under the section of the Highway Traffic Act, it was a vehicle.  Since it was used off-road, it did not require compulsory insurance, thereby not making it subject to the provisions of the Insurance Act.

The entire decision can be read by clicking on the link below.

Beattie and Unifund – Genie Boom – Accident

FSCO Releases New Professional Services Guideline

The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline, which applies to expenses related to services provided by health care providers rendered on or after September 6, 2014.

A copy of the new guideline can be found at the link below.

2014 FSCO Fee Guidelines

New OCF Forms to be used effective November 1, 2014

The Financial Services Commission of Ontario (FSCO) has released two bulletins with new forms to be used for accident benefits claims, effective November 1, 2014.

The new forms include the Application for Accident Benefits (OCF-1), Treatment and Assessment Plan (OCF-18), Auto Insurance Standard Invoice (OCF-21) and the Treatment Confirmation Form (OCF-23).

In a bulletin released by FSCO it was indicated that the reason for these changes is “to improve transparency and clarity regarding data analytics and pooling of information to detect fraud.  The OCF-23 has also been revised to accommodate Service Provider Licensing.”

These new forms can be downloaded at the links below:

OCF-1 – Effective Nov 1, 2014

OCF-18 – Effective November 1, 2014

OCF-21 – Effective November 1, 2014

OCF-23 – Effective November 1, 2014

FSCO Decision Reinforces Viability of Retrospective Attendant Care Needs Assessments (Form 1’s)

A new arbitration decision from the Financial Services Commission of Ontario (FSCO) affirms previous decisions that a retrospective attendant care needs assessment (commonly referred to as a “Form 1”) are viable.

In the decision Stephanie Kelly and Guarantee Company of North America [FSCO A12-006663], Arbitrator John Wilson affirmed that Ms. Kelly is entitled to payment for supplementary attendant care services, to be reimbursed for the cost for the Form 1 assessment, interest, and her expenses in the matter.

Ms. Kelly suffered catastrophic injuries and required one-to-one attendant care while in hospital.  Her family was, understandably, not in a position to know that a Form 1 was required to be completed to determine the amount of attendant care needs she required by use of a Form 1.  Once they were aware that one needed to be completed they retained an occupational therapist, who then completed a retrospective assessment.

In considering The Guarantee’s position that no attendant care benefit is payable prior to a Form 1 being submitted to an insurer, Arbitrator Wilson relied on a previous arbitration decision, T.N. and The Personal, wherein Arbitrator Bayefsky stated the following:

This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person’s need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment.

The decision can be read in its entirety by clicking on the link below.

Kelly and Guarantee

Page 3 of 1312345...10...Last »