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Posts Tagged ‘case law’

Neuropsychological Assessments and the $2,000 AB Cap

In September of 2010, the Statutory Accident Benefits Schedule (SABS) were amended with respect to Costs of Examinations.  A cap of $2,000.00 was placed on each assessment completed, either for the insured or the insurer.

This cap has proven difficult for some more complex assessments, including neuropsychological assessments.  In order to obtain a reliable assessment the cost is well beyond $2,000.00.

Many in the accident benefits community (plaintiff lawyers acting on behalf of injured victims, as well as insurers) have been getting around this cap by dividing up the assessment into two distinct assessments; normally a “psychological” assessment and a “neuropsychological” assessment.  For the most part this has been widely accepted as a way to comply with the statutory limit while getting a fairly reliable assessment report.  There have been a few insurers who have not agreed with this approach.

A recent FSCO arbitration decision, Breadner and Co-operators [FSCO A15-005120] has challenged this approach.

A Treatment and Assessment Plan (OCF-18) was submitted on behalf of Ms. Breadner with the following breakdown of costs:

  • Neuropsychological Interview – $2,000.00
  • Neuropsychological Testing – $2,000.00
  • Neuropsychological Screen related to the OCF-18 – $250.00
  • OCF-18 – $200.00

With taxes, the total amount of the proposed OCF-18 was $5,028.50.

Co-operators paid $2,200.00 for the cost of one assessment, plus $200.00 for the cost of completing the OCF-18.  They also paid the applicable HST for one assessment.  Ms. Breadner applied for arbitration to claim the costs of the second assessment.

Arbitrator Caroline King determined that the assessment work constituted one assessment within the meaning of the SABS.  She noted that the OCF-18 identifies a neuropsychological assessment and the documents/reports themselves had the same purpose identified, the same author of both reports on the same date, the same dates of examination and the same tests administered.  It was also noted that the results and information in the second document were incorporated by reference into the first document.

Arbitrator King concluded that, “When these points are considered as a whole, I find that the nature, content, and language of the documents clearly supports a finding that the work done constituted one assessment.”

This decision presents a quandary for both injured individuals as well as insurers.  Unless the two assessments are distinct, they may not be entirely paid for by the insurer.  However, any insurance company taking this position would do so at their own peril, as it would also prohibit them from getting a complete neuropsychological assessment as well under Section 44 of the SABS (insurer’s examinations).

The entire decision can be read in its entirety at the link below:

Breadner and Cooperators – Neuropsych and Psych as one assessment

The New Dispute System for Accident Benefits Claims: You Lose Before You Even Begin

On April 1, 2016, all disputes for accident benefits from motor vehicle accidents in Ontario were moved into a new system through the License and Appeals Tribunal (LAT) through the Ministry of the Attorney General. With a new system came new rules on the dispute resolution process. One of the most concerning is Rule 19, which deals with costs.

It is a common legal principle in civil law that the party that loses a case must pay at least some of the winner’s costs, which can include legal fees and disbursements (things that have been paid to third parties to advance the matter). This is based on the tenant of access to justice, which allows anyone regardless of economic resources to advance a claim against a party that has wronged him or her. In the context of the accident benefits system, it means that an injured person can advance a dispute against an insurance company and, if they are successful, their legal costs will be paid. They are not, therefore, hindered in advancing a claim because they cannot afford to do so.

Rule 19 of the LAT rules states that, “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” A recent LAT decision[1] with respect to this rule indicates that the unreasonable, frivolous or vexatious actions of a party are only within the context of the actual dispute resolution (LAT) proceeding.

What this means is that, even with the most egregious behaviour of an insurance company against a financially strapped injured person, that person cannot be reimbursed for the legal costs needed to dispute the insurance company’s decision, unless the insurer did not behave themselves within the LAT proceedings. It is as if all of the actions of an insurance company outside of the proceedings don’t matter.

While an injured person could claim a special award as a punitive measure against an insurer for unreasonable conduct, this is limited to up to 50% in addition to whatever amount is awarded for the most egregious conduct. The injured party cannot be reimbursed for the $100.00 LAT application fee, any medical reports or documents, which support their claim, or the costs of having a legal representative to stand up to the insurer on their behalf.

For example, let’s say that an insurance company denied payment of income replacement benefits to an injured person and that the insurance company’s denial was totally unreasonable. The injured person must pay a $100.00 application fee to dispute the denial. In most cases, given the complexity of accident benefits legislation, they must retain a legal representative. They go through the LAT process. The arbitrator ultimately agrees that the insurance company was unreasonable in denying payment of the income replacement benefit and orders it to be paid. As long as the insurance company behaved themselves in the proceedings they do not have to reimburse the injured person for the application fee, all supporting documentation supporting their claim (which could be in the thousands of dollars), or the costs for retaining the legal representative. The injured person could, in fact, be better off not even disputing the insurance company’s denial.

In our view, this is totally unjust and unfair.

At Smitiuch Injury Law we fully intend on appealing any adverse decisions on costs and will raise the access to justice principle in order to declare the current Rule 19 void.

[1] 16-000041 v Intact Insurance Company, 2016 CanLII 78333 (ON LAT)

Providing Attendant Care in the Course of Employment, Occupation or Profession: Economic Loss Not Required

If an individual who is involved in a motor vehicle accident is incapable of self-care as a result of their injuries they are eligible to claim Attendant Care Benefits through their own insurance company.  The insurer is only obligated to pay the benefit if the insured person has received the goods or services, has paid or promised to pay the expense, and if the person who provided the goods and services either (A) “did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”, or (B) sustained an economic loss as a result of providing the goods or services to the insured person.  In the case of “B”, the amount payable has been limited to the amount of the economic loss sustained as a result of providing the attendant care.

The first option is normally interpreted as obligating an insurer to pay for a professional service to come into the injured person’s home to provide attendant care, such as a personal support worker.  The second option is normally interpreted as requiring an insurer to pay for any economic loss sustained by a “non-professional” (family member or friend) who provides attendant care to an injured individual.  But what if the family member or friend is a professional personal support worker?

In the Financial Services Commission of Ontario (FSCO) decision, Michael Walsh and Echelon General Insurance Company [FSCO A15-007448], Arbitrator Benjamin Drory confirmed that, if a family member or friend who is a personal support worker provides attendant care to an injured individual, they do not need to sustain an economic loss as a result of providing the attendant care and the amount of attendant care payable is not limited to the amount of any economic loss.

Arbitrator Drory made the following comments in this decision:

I find that a service provider falling into the (A) clause—i.e., one that did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged—does not need to establish economic loss for the purpose of these provisions. This appears to have been a deliberate effort of legislative drafting, and I accept that if the legislature had intended for the provision to read differently, it could have done so.

I also accept that the legislative intent behind these provisions, as advised to me by both parties, was an intention to prevent abuse of the attendant care benefit by family members who are not trained professionally to do it.

The sole question before me is whether the services provided by Mrs. Walsh to the Applicant were done in the course of the employment, occupation or profession in which she would ordinarily have been engaged. I find that the answer is yes, based on both the case law and the legislative intention presented to me.

He goes on to make the following analogy:

If a lawyer working for salary were to offer legal services pro bono to a cause they cared about outside working hours, would they cease being a lawyer during that time because they weren’t being remunerated for it? The answer would quickly be no—and I suspect many might even be offended at the suggestion. The question of what makes one a lawyer should consider one’s ability to be remunerated for it—but it also needs to take into consideration one’s acquired knowledge and skills relevant and/or necessary to the work, and any licensing authorities involved. One does not lose their skill set or status merely because they will not be remunerated financially in undertaking a particular task. I believe the question of what makes one a PSW is analogous—and is consonant with the decisions of Garson, J. and Arbitrator Fadel. I find it in harmony with the ordinary understanding of what it means to be part of a profession, and the common day-to-day usage of that term.

It also fits with the legislature’s intention to restrict access to attendant care benefits by untrained family members and friends reflected in the 2010 and 2014 amendments. Where a family member is a trained professional working in the relevant field, concerns respecting qualification seem to be directly addressed. It would seem odd, as a matter of public policy, to mandate that insureds with trained professionals in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable. As Arbitrator Fadel noted, there is no restriction in clause (A) of the Schedule that mandates a professional healthcare aide be arm’s length, nor do I find it appropriate to read one into it.

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

Insurer Has Obligation to Ensure Graduated Return to Work is Possible: FSCO

A recent arbitration decision from the Financial Services Commission of Ontario (FSCO) has concluded that an accident benefits insurer has an obligation to ensure that a graduated return to work is possible before terminating income replacement benefits.

In the decision Nader and State Farm [FSCO A13-003230], Javed Tabey Nader was injured in a motor vehicle accident and was unable to return to his pre-accident job.  His accident benefits insurer, State Farm, sent him to insurer’s examinations and the assessors concluded that he could participate in a graduated return to work program.  State Farm then notified Mr. Nader that they were discontinuing his income replacement benefits after the period that the insurer’s assessors concluded that the graduated return to work would be completed.

No one from State Farm ever checked to see if Mr. Nader’s employer was able to accommodate a graduated return to work, which it could not.  Moreover, when State Farm was advised that Mr. Nader did not return to work, State Farm did not find out why this did not happen and simply maintained their denial.

Arbitrator Bujold concluded that Mr. Nader was entitled to income replacement benefits for the first two years of his accident benefits claim and made the following comments with respect to a special award of $5,000.00:

Dr. Armitage’s opinion that Mr. Nader could return to work was premised on the availability of a graduated return to work program, and the provision of active rehabilitation and other supports as may be reasonably required to facilitate the attempt. However, neither Dr. Armitage nor State Farm knew whether graduated work was available, and the OCF-9 provided no guidance or direction to Mr. Nader with respect to what was expected of him in terms of investigating, arranging or participating in a graduated work return. More importantly, when advised that Mr. Nader had not returned to work, State Farm took no steps to ascertain the reasons for his non-return to work, help determine the availability of graduated work, and either help facilitate a graduated return to work (if available) or proceed with a vocational assessment to explore other employment options, including possible upgrading. Instead, State Farm simply maintained its denial. In these ways, State Farm acted unreasonably, and its withholding of income replacement benefits from this point became subject to a special award.

This decision is an important lesson to insurers of their obligation to keep an open mind and to continue consideration of entitlement to accident benefits even after the benefit has been denied.

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

Nader and State Farm – Special Award

 

New Decision Clarifies Insurer’s Examination Requirements

In the decision, Larry Ward and State Farm Mutual Automobile Insurance Company [FSCO A14-010161], Arbitrator Chuck Matheson decided on a preliminary issue as to whether an insured, Mr. Larry Ward, was precluded from proceeding to arbitration on a number of issues due to his non-attendance for insurer’s examinations, which are required under Section 44 of the Statutory Accident Benefits Schedule (SABS).

One of the factors considered by Arbitrator Matheson was whether or not State Farm provided medical or other reasons for the insurer’s examinations.  The arbitrator interpreted the requirement to be that, “…the medical reasons test must tell the Applicant, in an unsophisticated way, why the tests [insurer’s examinations] are reasonable and necessary.”  The words “reasonable and necessary” are new to the consideration of what is required for a medical reason required by an insurer.

The decision also confirms that, just because an insurer has not approved particular treatment or an assessment (for instance, if it is funded by OHIP), does not mean that they are not required to pay for transportation to and from them.  It also confirms that an OCF-18 Treatment and Assessment Plan is not required for goods or services under $250.00, as well as for medications prescribed by a regulated health professional.

Arbitrator Matheson also concluded that case management services, while subject to submission on a treatment plan, are not subject to an insurer’s examination.  He notes that,

I accept the Applicant’s interpretation of section 14 that the “virtual account” called medical and rehabilitation benefits shall pay for the specified benefits listed in sections 15, 16 and 17. It does not mean, however, that section 17’s case manager benefit is in fact a Medical or Rehabilitation Benefit, per se. The legislature severed the case manager because it is not a specified Medical or Rehabilitation Benefit. The case manager’s function is to coordinate the specified benefits of sections 15 and 16 in order help the insured person to attend and claim said specified Medical/Rehabilitation and/or Attendant Care Benefits for a catastrophically impaired person.

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

Ward and State Farm – Medical Reason, Transportation

Change to Economic Loss Payment Not Retroactive: Court

A judge of the Ontario Superior Court of Justice has ruled that a change to the Statutory Accident Benefits Schedule (SABS) which became effective on February 1, 2014, does not apply to accidents prior to this date.

In the decision David v Wawanesa Mutal Insurance Company [2015 ONSC 6624], Quinlan J. considered whether Section 2 of Ontario Regulation 347/13 applies to accidents prior to February 1, 2014, when this regulation came into force.

In September of 2010 a change to the SABS allowed for non-professionals (e.g., family or friends) to be compensated for the attendant care that was provided to a person injured in a motor vehicle accident only if that non-professional suffered an “economic loss”.  The term “economic loss” was not defined.  The Ontario Court of Appeal later ruled, in its decision on Henry v Gore Mutual Insurance, that if a non-professional suffered an economic loss, they were entitled to the full amount of the monthly attendant care needs (Form 1) and that reimbursement was not limited to the actual amount of the economic loss.  In other words, once a non-professional established that an economic loss had been demonstrated, the full amount of attendant care benefit was payable as assessed.

In December of 2013 the Government of Ontario filed Ontario Regulation 347/13 to limit the amount of compensation for a non-professional to the actual amount of the economic loss sustained.  This regulation went into effect on February 1, 2014.  The regulation is silent on whether or not it is retroactive.

Quinlan J. states as follows:

[31]           Therefore, I accept the plaintiff’s position that attendant care benefits are a contractual right to which an injured person is entitled.  The contract of insurance between an insured and insurer creates rights and obligations, including the right to attendant care benefits.  As such, despite the fact that SABS are a government-legislated scheme, the treatment of other benefits bestowed by legislation and cases dealing with those benefits do not assist in deciding the issue before me.

[34]           The fact that legislation is remedial does not necessarily mean that it is intended to apply retrospectively (R. v. Evans, 2015 BCCA 46 (CanLII), 321 C.C.C. (3d) 130 at para. 33).  As the Court of Appeal held at para. 60 of R. v. Bengy, 2015 ONCA 397 (CanLII), 325 C.C.C. (3d) 22, if the need for immediate reform of the law were so pressing, why would the legislature not have explicitly made the law retrospective?  There is nothing in the record, including the explanatory notes, that demonstrates a clear legislative intent that the amendment is to apply retrospectively.

[35]           Accordingly, the presumption has not been rebutted and therefore applies.  I find that the plaintiff has a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident.

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

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc6624/2015onsc6624.html

Dockets Not Necessarily Required for Costs

A recent judicial decision determined that a law firm’s dockets are not normally required to be produced in order for a court to fix costs under the Rules of Civil Procedure.

In Bhatt v William Beasley Enterprises Limited [2015 ONSC 4941 (CanLII)], Justice Faieta stated that the mere size of the amount of costs being claimed is not a sufficient reason to require a party to undertake the expense of preparing and vetting their dockets.

Peter Cho and Luke Hamer, both of Smitiuch Injury Law, represented the Bhatt family in this matter.

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

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4941/2015onsc4941.html

Costs for Examination for CAT Assessment, Form 1 Completion and Disability Certificate Not Out of Med-Rehab Limits

A recent decision by the Financial Services Commission of Ontario (FSCO) confirms that the costs for completion of a catastrophic assessment are not subject to the medical and rehabilitation benefit limits.

In Lee-Anne Henderson and Wawanesa Mutual Insurance Company [FSCO A14-001758], Arbitrator Patrick Bowles was asked to consider whether or not this was the case.  The Applicant, Ms. Henderson, had requested that the costs for the completion of a catastrophic assessment be paid by the insurer.  Wawanesa denied payment, stating that Ms. Henderson had reached the maximum payable for medical and rehabilitation benefits in the amount of $50,000.00, therefore there was no further benefits available to fund the assessments.

Arbitrator Bowles accepted Ms. Henderson’s argument that the only assessments that are subject to the medical and rehabilitation benefit limits are ones for the purpose of claiming a medical and rehabilitation benefit.  Since a catastrophic determination is not for the purpose of a benefit per se (rather, it is for a determination on the amount of benefits available), it is not subject to the limits, and should properly be allocated as a claims expense by the insurer.

While it was not directly considered in this decision, it follows that the costs for completion of an Attendant Care Needs Assessment (Form 1), as well as a Disability Certificate (OCF-3) are also not subject to payment under the medical and rehabilitation benefits, as they are for an attendant care benefit and for specified benefits, respectively.

If an insurer is claiming that the medical and rehabilitation benefits have reached the limits, it is helpful to obtain an itemized listing of all payments made to determine if any payments have been incorrectly allocated.  This could free-up additional funds that may be needed by an insured for treatment.

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

Henderson, Lee-Anne and Wawanesa – COE for CAT not in MR benefit limits

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

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