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Posts Tagged ‘case law’

Law Times Article Quotes Michael Smitiuch on Economic Loss issue for Attendant Care

The Law Times has published an article examining the current legal issue as to what constitutes an “economic loss” for family members and friends of individuals injured in motor vehicle accidents to be compensated for providing attendant care.

In September 2010 the Statutory Accident Benefits Schedule (SABS) was changed so that non-professional attendant care providers could only be compensated if they incurred an “economic loss” by providing the attendant care.  The SABS does not define what exactly is an “economic loss” and this has been the subject of vigorous debate between insurers and insureds.

The case of Henry v. Gore Insurance it was upheld by the Ontario Court of Appeal that an insurer cannot just compensate an attendant for the actual amount of the economic loss; rather, the insurer is bound to compensate the attendant for all incurred services in accordance with the amounts calculated by the Attendant Care Needs Assessment (Form 1).

In the October 14, 2013, Law Times article, the focus is now on the decision, Simser and Aviva Canada Inc., which is currently under appeal.  In this case the insured tried to broaden the definition of “economic loss” to include loss of opportunity, labour or leisure, which the arbitrator did not agree with.  Rather, the arbitrator took the position that there must be some type of monetary or financial loss.

If the Simser matter or some other case ever does reach the appeal court, Toronto personal injury lawyer Michael Smitiuch is confident any definition of economic loss would keep the threshold low to include people who give up part-time jobs or some of their work hours to provide necessary care for family members.

“Although it doesn’t specifically address the issue of economic loss, I believe Henry v. Gore supports the proposition that any time missed from work will constitute an economic loss. That would be consistent with previous case law which says insurance coverage provisions are to be interpreted broadly, not restrictively,” says Smitiuch.

The Law Times article 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.

Macleans References Stilwell v. Corning and World Kitchens Inc. Case

A recent article in Macleans Magazine examining the science of forensic engineering makes reference to the contributions made in the Stilwell v. Corning and World Kitchens Inc. trial.

The article can be read 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.

 

Attendant Not Required to Provide Academic Records to AB Insurer

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.

Attendant Care and Treatment can be Claimed Simultaneously

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.

Amount of Attendant Care Payable is NOT Limited to the Extent of the Economic Loss Suffered

A recent decision delivered by Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, found that an automobile insurer must pay an insured the full amount of attendant care benefits as set out in the Form 1 and is not entitled to take a proportional approach to the payment of this benefit. Gore Mutual Insurance argued that its liability for attendant care benefits was limited to the number of hours that the attendant care provider lost from work. Justice Ray did not agree with this approach and stated that a plain reading of the relevant section must be followed. In the decision, Justice Ray stated the following:

A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured – and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured as described in the Form 1.

The decision can be read in its entirety here: Henry v Gore Mutual Insurance Company, 2012 ONSC 3687

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