Posts Tagged ‘decisions’
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.
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.
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.
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.
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.
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.
June 2, 2014
Balance needed between interests of drivers, insurers
While the future of a bill meant to address pressing concerns in the auto insurance system is unknown, the issues persist, and drivers are still in need of cost-saving solutions, says Toronto personal injury lawyer Peter Cho.
The Liberal government’s Bill 171, the Fighting Fraud and Reducing Automobile Insurance Rates Act, passed second reading in April, and proposed making several changes to the auto insurance dispute resolution system. The bill is now effectively dead as the legislature has dissolved for the June 12 election.
Cho, associate with Smitiuch Injury Law, said he’s glad to see Bill 171 go by the wayside, but as long as auto insurance rates remain an issue in Ontario, another version of the bill is likely to be presented in the near future.
Read the complete article at: Advocatedaily.com
Contact Peter Cho for further information.
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.
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:
- The dominant test of whether a person falls into the MIG is if the injury was predominantly a minor injury;
- The burden of proof always rests on the insured, not the insurer, of proving that he or she fits within the scope of coverage;
- “Compelling evidence” is more than “credible evidence”; and
- 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.