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Posts Tagged ‘Arbitration’

Bus Passes or Tickets constitute an “Economic Loss”: FSCO

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that confirms that the purchase of bus passes or tickets by a non-professional for the provision of housekeeping and home maintenance, as well as caregiving services and (arguably) attendant care, constitutes “economic loss” under the Statutory Accident Benefits Schedule (SABS).

On September 1, 2010, the accident benefits legislation was changed so that non-professionals (i.e., those who have not provided the services in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident) could only be reimbursed for the services they provided if they had incurred an economic loss.  The term “economic loss” was not defined within the regulations.

In the decision Asokumaran and TD Home (FSCO A12-007443) Arbitrator Susan Alves noted that it was submitted that the insured’s friend purchased bus tickets and/or passes to travel to the insured’s home.  Both parties agreed to submit to a preliminary issue on whether or not these expenses would constitute an “economic loss”.  The arbitrator did not address whether or not these expenses were incurred to provide the housekeeping and caregiver services and that issue will be decided at the main arbitration hearing.

What is clear from this decision is the rejection of a de minimis requirement (that is, that there is a possible minimum amount required for an economic loss argument to be established).  The insurer in this case relied heavily on a previous arbitration decision, Simser and Aviva Canada, which was generally restrictive with respect to broader-use definitions of what constitutes an economic loss.  Arbitrator Alves noted the following:

In Simser and Aviva Canada Inc., (FSCO A11-004610, January 16, 2013), the hearing arbitrator adopted the definition of economic loss from Black’s Law Dictionary and held that economic loss as applied in the Schedule must relate to some form of financial or monetary loss. This conclusion was not disturbed on appeal.
At the Simser hearing, the applicant had significant evidentiary difficulties in establishing the various losses claimed. For example, the hearing arbitrator described the evidence adduced at the hearing as vague and lacking in detail, lacking documentary evidence from the service provider’s employer, despite numerous requests from the insurer, and that there was a failure to link the expense or loss to the attendant care claimed. With respect to some of the out-of-pocket expenses, the arbitrator held that they were de minimis and therefore did not amount to economic loss.
I am not persuaded that the expenditure of $5,048 in this case is de minimis. The Court of Appeal in [Gore v.] Henry rejected any de minimis requirement for an expense to qualify as economic loss. On this point, on appeal, Delegate Blackman noted that the hearing arbitrator in Simser adopted the de minimis approach taken by the trial judge in Henry v. Gore Mutual. However, the arbitrator did not have the benefit of the Court of Appeal’s decision rejecting the de minimis approach at the time he issued his decision.
What is clear from these cases is that a loss of wages or a loss of income will qualify as an economic loss. I am not persuaded by the Insurer’s submission in this case, that the term economic loss should be read restrictively so that only those losses will qualify. Had the legislature intended to restrict economic loss to wage loss or loss of income, it could have so stated. Insurance coverage provisions are to be interpreted broadly, while coverage exclusions or restrictions are to be construed narrowly in favour of the insured.  In my view, the Applicant has demonstrated that funds were expended by her friend and service provider in the amount of $5,048 to purchase bus tickets and/or passes in order for her to travel to the Applicant’s home. The purchases involved the expenditure of funds by the service provider, were a monetary loss to her and therefore qualify as an economic loss within the meaning of the Schedule.

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

Asokumaran and TD – Economic Loss

Aviva Canada Penalized for not Producing Someone With Authority

The Financial Services Commission of Ontario (FSCO) has released a Pre-Arbitration Hearing Decision regarding Aviva Canada’s failure to have anyone from the insurer with authority available to resolve an accident benefits claim.

In the decision, Dabrowska and Aviva [FSCO A13-007793] a pre-arbitration discussion was held on February 27, 2014, and counsel for both parties reached an agreement on a “modest resolution” of the insured’s accident benefits claim.  While Aviva had legal counsel and a representative present at the discussion, neither of them had authority to approve the settlement and no one with authority was available by either telephone or email.

Arbitrator John Wilson found Aviva in violation of Section 279(5) of the Insurance Act, which reads as follows:

If an insurer or an insured is represented in a mediation under section 280, an evaluation under section 280.1, an arbitration under section 282, an appeal under section 283 or a variation proceeding under section 284, the mediator, person performing the evaluation, arbitrator or Director, as the case may be, may adjourn the proceeding, with or without conditions, if the representative is not authorized to bind the party he or she represents.

The Arbitrator made the following comments:

“Authorized to bind” in the Act means that the representative never has to pick up the telephone to get instructions. Binding authority does not exist where the representative merely has authority to say “no” with no room to vary that position should further information be made available.
This pre-hearing was not a surprise to Aviva. It received the appropriate notices. Indeed, it sent an in-house counsel and an experienced representative, neither with any authority to do more than attend the pre-hearing.
The requirements of the Insurance Act should not have been a surprise to Aviva either. It has a legal department which appears frequently at FSCO arbitrations and pre-arbitrations, and should have been in a position to be aware of its responsibilities under section 279 of the Act and the related jurisprudence.3 Aviva is a sophisticated player and should have known better.

As a result Aviva was ordered to pay the time for the legal representative to prepare and attend the pre-hearing, as well as the actual travel expenses for the insured.

This decision can be read in its entirety by clicking here.

Scarlett and Belair Appeal Allowed – Remitted to Another Hearing

The Financial Services Commission of Ontario has allowed the appeal of a previous arbitration decision with respect to the Minor Injuries Guidelines (MIG).

In the appeal decision Scarlett and Belair Insurance [FSCO P13-00014] Director’s Delegate David Evans allowed the appeal of the earlier decision by Arbitrator Wilson.  Our original blog post on this decision can be referenced by clicking here.

Director’s Delegate Evans has ordered that all issues be subject to a full hearing before another arbitrator.

This appeal decision provides a few glimpses of what is likely to come from a new arbitration hearing with respect to the Minor Injury Guidelines:

  1. The dominant test of whether a person falls into the MIG is if the injury was predominantly a minor injury;
  2. The burden of proof always rests on the insured, not the insurer, of proving that he or she fits within the scope of coverage;
  3. “Compelling evidence” is more than “credible evidence”; and
  4. The MIG is binding and is not only advisory.

The Director’s Delegate also noted that the arbitrator’s decision breached procedural fairness by raising cases and statutory provisions of his own accord after the arbitration hearing without providing notice to the parties or an opportunity to respond.

FSCO Releases Decision Clarifying What Is a “Medical Reason” for Denial of a Benefit and Insurer’s Examination

The Financial Services Commission of Ontario (FSCO) has released a decision clarifying what is considered to be a “medical reason” for an insurer to deny a benefit and for the insurer to demand that an insured attend an insurer’s examination under Section 44 of the Statutory Accident Benefits Schedule (SABS).

In the decision, Kadian Augustin and Unifund Assurance Company [FSCO A12-000452] Arbitrator Susan Sapin considers whether or not Ms. Augustin is allowed to dispute the insurer’s denial of treatment because she failed to attend an insurer’s examination.  In order to make a determination Arbitrator Sapin needed to consider whether or not the insurer’s examination was compliant with the SABS.

Unifund wanted to send Ms. Augustin to an insurer’s examination to determine if she was within the Minor Injury Group (MIG) after receiving a treatment plan that, if approved, would take her out of the MIG.  Unifund provided the following notice to Ms. Augustin in their Explanation of Benefits: “Based on our review of the medical documentation provided to date, we require an assessment by an independent medical assessor, in order to determine if your impairment is predominantly a minor injury as described in the Minor Injury Guideline. Please see the Notice of Examination for further details.”

Arbitrator Sapin found that this explanation did not comply with Section 38(8) of the SABS because it did not state that Unifund “believes” the MIG applies, or why.  Nor did it state the “medical reasons and all of the other reasons why the insurer considers any goods or services, or the proposed costs of them, not to be reasonable and necessary.  The arbitrator noted that it provided no reason, medical or otherwise, explaining why it refused to pay the benefit.

Arbitrator Sapin goes on to explain,

Although this might seem a very fine point, that is what the sections [38(8), 38(9) and 38(10)] actually say. The legislature chose this wording, and recognised principles of statutory interpretation require me to interpret it in a reasonable fashion and in the overall context of the accident benefits scheme. Given that an insured person’s treating practitioner must provide a factually based medical opinion to support a claim for treatment outside the MIG, I find it is reasonable to require an insurer who chooses to refuse to pay an initial claim to counter with something more than simply a desire “to determine if your impairment is predominantly a minor injury as described in the Minor Injury Guideline,” as Unifund has done in this case. This is particularly so where, as in the case here, Unifund refused to pay for the treatment pending an IE, a response I find undermines the stated purpose of the MIG to provide access to early treatment, a purpose based on sound medical principles.

The arbitrator also provides a guideline for insurers for a proper denial of an application for a benefit that would take the insured out of the MIG as follows:

I find it follows logically from these requirements that in its s. 38(8) notice to the insured person that medical benefits will not be paid, the insurer, in explaining why the benefits are not payable, must indicate that it has reviewed the Treatment and Assessment Plan and any medical documentation provided; compared it to the criteria in the MIG; and determined either that there is insufficient compelling evidence (of pre-existing injuries or conditions, for example) or insufficient medical documentation to persuade it that the accident injuries fall outside of the MIG, and therefore, the insurer believes the MIG applies and the treatment claimed is not reasonable or necessary (because the treatment does not conform to the MIG treatment protocols, for example). I find that type of response would meet the insurer’s obligation to provide “medical reasons” as required by s. 38(8) when it chooses to refuse benefits because it believes the MIG applies.

Also of note is the arbitrator’s distinction between a “medical reason” and a “medical opinion”:

A medical opinion, such as that required of the health practitioner who submits the Treatment and Assessment Plan, is based on facts obtained from an assessment of the insured person’s medical condition, in person or otherwise. As stated above, an insurer does not have the benefit of its own medical opinion at the time it receives the initial treatment plan, and can only obtain one by exercising its right to an IE, founded in s. 38(10), and for which rules are set out in s. 44(5).

With respect to the need for a medical reason to be provided by an insurer when notifying the insured for their need to attend an insurer’s examination under Section 44 of the SABS, Arbitrator Sapin states as follows:

As stated above, I find s. 38 and s. 44 must be read together, as the right to an IE is founded in s. 38(10) and arises from the insurer’s right under s. 38(8) to refuse a claim for treatment. I have already identified that the “medical reasons and all of the other reasons” in the refusal notice should include, at a minimum, a statement that the claims adjuster has reviewed the MIG and the treating health practitioner’s medical opinion, and has concluded that the health practitioner has not provided compelling evidence that the person’s injuries are outside the MIG, or that the treatment claimed is reasonable or necessary. The “medical and other reasons for the examination” in the Notice of Examination under s. 44(5) should contain substantially similar information.

This decision 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.

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.

 

FSCO: Mediation Backlog will be over by September 2013

The Financial Services Commission of Ontario (FSCO) is reporting that the backlog of mandatory mediations will be over by the end of August, 2013.

When an accident benefits insurer denies a benefit, such as medical treatment, a mediation through FSCO is the mandatory first step in the dispute resolution process.  In previous years a mediation date would often take up to one year from the date the mediation application was submitted.  Judicial and arbitration decisions (ironically from arbitrators at FSCO) deemed that a mediation must be conducted within 60 days in accordance with the Dispute Resolution Practice Code or it can be deemed to have been failed.

FSCO provided statistics and timelines with respect to the backlog.  These can be viewed by clicking here.

First MIG Decision Released by FSCO

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.

 

Ontario Court of Appeal Upholds “60 Day” Rule for FSCO Mediations

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:

[56]        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.

Ontario Court of Appeal Rules on Pastore Decision in Favour of Claimants

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

 

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