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Tuesday, April 25, 2017

 
 
 

 
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Posts Tagged ‘decisions’

State Farm Barred from Denying Claimant as “Insured” Five Years After MVA

In a recent Ontario Superior Court of Justice decision, State Farm v. Bunyan [2013 ONSC 6670 (CanLII)], State Farm Insurance Company was not allowed to consider an accident benefits claimant as not being an “insured” under the policy five years after the motor vehicle accident.

This decision deals with Christian Bunyan, who was a pedestrian who was struck by a truck in Alberta in September of 2007 and suffered catastrophic injuries.  At the time of the accident he did not have a driver’s license.  He was dependent on his mother, who lived in Ontario and had a valid automobile insurance policy with State Farm.  Under Ontario law, a person who is considered insured under an Ontario policy can apply for accident benefits in Ontario if their accident occurs anywhere in Canada or the United States.

State Farm accepted the accident benefits claim and also accepted that Mr. Bunyan was catastrophically impaired.  Five years after the accident State Farm then took the position that Mr. Bunyan was not dependent on his mother and was, therefore, not deemed to be an “insured person” under the policy.  Mr. Bunyan asserted that he was dependent upon his mother at the time of the accident and that, since State Farm was raising this issue five years after the accident, he had lost the opportunity to apply for benefits through any other insurer.  In other words, if he was not considered dependent on his mother and not eligible for further Ontario accident benefits he would have no other insurer to provide his much-needed benefits.

D.L. Corbett J. ruled that Mr. Bunyan was dependent on his mother at the time of the accident and also ruled that State Farm was barred by the legal principal of estoppel from taking this position five years after the accident.  Estoppel basically means that a party is not allowed to assert a fact or a claim inconsistent with a previous position, especially when it has been relied or acted upon by others.  In other words, since State Farm had accepted that Mr. Bunyan was an insured person for five years and Mr. Bunyan had relied on that position and had not applied to other insurers because of that, State Farm was now estopped from changing their position.

The Court’s decision is also helpful because it expands on what constitutes dependency.  At the time of the accident Mr. Bunyan was living in Alberta, had recently acquired a low-paying job, had recently separated from his girlfriend and their son, and was relying on his mother for financial support.  As Judge Corbett stated in his decision, “It can be difficult to determine precisely when an adult child ceases to be dependant on his parents.  Functionally, the change from dependence to independence is more a transition than an event.”

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.

 

Consumers warned about potential cookware dangers

Consumers across North America are being warned about the potential dangers of Visions glass cookware, after a London, Ontario-area man was awarded $1.15 million in damages in the first successful North American lawsuit against the makers of the glass cookware, Corning Incorporated and World Kitchen Inc. -Smitiuch Injury Law represented Lanny Stilwell of Beachville, Ontario.
Click here for the complete story:

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.

Henry v. Gore Upheld: Ontario Court of Appeal

The Ontario Court of Appeal has upheld the decision of Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, which 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.

The Honourable Alexandra Hoy, who wrote on behalf of the Court of Appeal, stated the following:

Attendant care benefits are only payable in respect of the provision by a family member of care detailed in the Form 1 assessment of the insured’s attendant care needs if the family member sustains an economic loss as a result of providing such care to the insured.  If an economic loss is sustained, attendant care benefits are payable with respect to all care detailed in the Form 1 provided by the family member, subject to the maximums in s. 19(3) and various other safeguards, including ss. 42 and 33 of SABS-2010.  If no such loss is sustained, no attendant care benefits are payable in respect of care provided by the family member, even if the family member provides care that would otherwise be provided by someone in the course of their employment, occupation or profession and would necessitate the payment of attendant care benefits by the insured.  And to the extent that the economic loss sustained by the family member as a result of providing such care to an insured exceeds the maximum attendant care benefits stipulated in SABS-2010, the family member is not indemnified.

Please see our blog post on the trial judge’s decision by clicking here.

2013 Smitiuch Injury Law Scholarship Recipient – Assumption College

The recipient of the 2013 Smitiuch Injury Law Assumption College Legal Studies Scholarship is Ms. Arnisa Morina.

This year’s winner was announced on Thursday, June 27, 2013, during the Graduation ceremonies held at Assumption College in Brantford, ON. The $250 scholarship is awarded to a student of Assumption College who has successfully completed the Grade 11 Law course and who is involved in extra-curricular activities either inside or outside the Assumption College community beyond the minimum requirements.

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For more information contact: Michael Smitiuch / [email protected] / 416-621-1551

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.

 

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