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Posts Tagged ‘decisions’

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.

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

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