Posts Tagged ‘decisions’
The Ontario Court of Appeal has upheld a decision from the Superior Court of Justice of Ontario that declared a mediation by the Financial Services Commission of Ontario (FSCO) failed if it has not been mediated within 60 days of the application being submitted.
In Cornie v. Security National [2012 ONSC 905], which was heard with three other similar cases, Justice J.W. Sloan found the insurance companies’ postion that accident victims must simply wait to be ”preposterous” and suggests that FSCO can continue to try to comply with the 60 day period or seek a change and/or ask for some legislative direction to extend the 60 day period in appropriate circumstances. This decision was posted in our blog on February 9, 2012.
This ruling means that, when an accident benefits insurer has denied a benefit, the insured can apply for mediation at FSCO and, 60 days after the mediation has been filed, the insured can then move on to either arbitration or a lawsuit against the insurer if the mediation has not been conducted within that timeframe.
The Court of Appeal concluded their decision by stating the following:
 The legislative scheme for resolving disputes about statutory accident benefits requires that insured persons resort to a mandatory mediation process before commencing a court proceeding or submitting their disputes to arbitration. The Act, the regulations and the DRPC make it clear that this process is intended to be completed within 60 days from the filing of an application for mediation with FSCO, unless the parties agree to an extension of time. The scheme postpones the right of insured persons to commence civil actions against their insurer in order to allow the mediation process to be completed within the time prescribed, but leaves them free to commence actions once that period has expired.
A major decision with respect to the definition of “catastrophic” under the Statutory Accident Benefits Schedule was released by the Ontario Court of Appeal today.
It its decision, Pastore v. Aviva Canada [2012 ONCA 642], the Court has supported the findings of the Director’s Delegate at the Financial Services of Ontario, who decided that only one functional impairment due to a mental or behavioural disorder at the marked level is necessary to declare a person’s injuries as catastrophic. Furthermore, the decision supports that a marked psychological impairment caused by physical pain is valid for the purpose of determining a catastrophic impairment.
The decision can be read in its entirety by clicking here. Pastore Appeal
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.
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.
A recent Ontario Court of Appeal ruling confirmed that it is possible for someone injured in a motor vehicle accident to work but still be entitled to a Non-Earner Benefit.
In the decision, Galdamez v. Allstate Insurance Company of Canada [2012 ONCA 508], Hayfa Galdamez returned to work shortly after her accident. Because of this, Allstate took the position that she was not entitled to income replacement benefits. However, even though she was able to work, her medical professionals were of the opinion that she met the test for a non-earner benefit; namely, that she suffered a complete inability to carry on a normal life.
It has been well established in case law that entitlement to a non-earner benefit goes beyond the ability to simply go through the motions of everyday life.
The Court stated the following:
 Although I consider it unlikely that persons who can work at their pre-accident jobs following an accident will often meet the disability standard for non-earner benefits, I do not rule out such a possibility.
 For example, in jobs where mobility is not a requirement (e.g. department store greeter, telemarketer, etc.) and the job was not of great importance in the claimant’s pre-accident life, it may be possible for a claimant who returns to his or her pre-accident employment following an accident to satisfy the test for non-earner benefits.
This decision can be read in its entirety by clicking here.
Applying to Wrong Insurer is a Reasonable Excuse for Delay in Applying to Correct Insurer for Accident Benefits
A recent arbitration decision by the Financial Services Commission of Ontario (FSCO) confirms that an insurer cannot deny accident benefits if the application is significantly delayed because the claimant applied to the wrong insurer first.
In the decision, Egal and Economical [FSCO A10-004057] Arbitrator Judith Killoran concluded that the Applicant, Roda Egal, had a reasonable excuse for the delay in applying for accident benefits with the Economical Insurance Company, because Ms. Egal had originally applied to another insurance company (American Assurance) who was handling her claim. Economical did not take timely steps to request information to corroborate her claim, but rather simply maintained their position that she had not applied for accident benefits within the timeframes outlined in the Statutory Accident Benefits Schedule (SABS).
Furthermore, Arbitrator Killoran ordered a special award in the amount of $5,000.00 against Economical for its unreasonable position. As stated in her decision,
I find no merit in Economical’s position that it had no responsibility to adjust Ms. Egal’s file until receiving a reasonable explanation for her delay in applying. Economical received a reasonable explanation for the delay. Economical was also aware that documentation had been sent to the wrong insurer and persisted in refusing Ms. Egal’s claims long before it had received her file.
I find that Economical failed egregiously in its responsibilities to its first party insured, Ms. Egal. It did not follow up expeditiously in obtaining her file from American Assurance and it made decisions about her entitlement in its absence. No attempts were made to evaluate the merits of Ms. Egal’s claims. I find that Economical unreasonably withheld the payment of benefits to which Ms. Egal was entitled. Consequently, I find that Ms. Egal is entitled to payment of a special award fixed at $5,000, inclusive of interest.
This decision can be read in its entirety by clicking here.
In a recent Financial Services Commission of Ontario (FSCO) Arbitration ruling, Costel Sicoe and Jevco Insurance Company [FSCO A08-001173], Arbitrator Susan Sapin confirmed that the hourly rates indicated on the Attendant Care Needs Assessment (Form 1) are the rates which are to be used by insurers for paying the benefit.
Mr. Sicoe was catastrophically injured in a motorcycle accident on June 15, 2006. As a result of this accident he required round-the-clock attendant care. Jevco paid the attendant care to the maximum of $6,000.00 per month.
However, in February 2009 Mr. Sicoe moved to Romania. Jevco reduced the monthly attendant care payments based on an argument that the basic supervisory care amount of $7.75 per hour is based on the minimum wage in Ontario at the time of the accident, but in Romania the minimum wage was $1.30 per hour. Jevco paid $1.30 per hour for the basic supervisory services. This resulted in Mr. Sicoe being paid less than the $6,000.00 per month that he was entitled to in accordance with the Form 1.
Arbitrator Sapin confirmed the interpretation of an “incurred expense” from previous case law:
It is well-established that an applicant need not actually receive the items or services claimed in order to be entitled to an expense. To do otherwise would allow the insurer to set up the inability of an insured to pay for a benefit as a shield from its obligation under the policy of insurance. It is sufficient that the reasonableness and necessity of the service be established and that the amount of the expenditure can be established with certainty.
This decision further confirms that insurers are bound to pay attendant care benefits in accordance with the Form 1 and that they do not have the discretion to pay below the rate established by the Form 1. To that end, Arbitrator Sapin stated the following:
I note that the most recent Attendant Care Hourly Rate Guideline, dated June 2010 and available on the Commission website, establishes the maximum expense that automobile insurers are liable to pay under the Schedule for attendant care services (for accidents after September 1, 2010). The Guideline also states that “Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.” It does not say, however, that insurers can pay less.
NOTE: This decision was overturned on appeal on October 1, 2012
In the decision Marcia Henry and State Farm Automobile Insurance Company [FSCO A09-000213] FSCO Arbitrator Denise Ashby ordered the insurer to pay a claimant’s income replacement benefits (IRB) with interest. The insurer was also ordered to pay a special award of $23,000.00 for unreasonably withholding the benefit.
Marcia Henry was a full-time emergency triage nurse in a hospital. The medical experts identified that she was only capable of engaging in sedentary work. Despite that, State Farm terminated her income replacement benefits prior to the 104-week mark, taking the position that she did not suffer a substantial inability to perform the essential tasks of her pre-accident work.
The Arbitrator also considered Ms. Henry’s entitlement to IRB’s after the 104-week mark, when the eligibility criteria changes to having to suffer a complete inability to engage in any employment for which she is reasonably suited, based on education, training and experience.
Although Ms. Henry took courses to upgrade her resume following the accident, it was determined that she still remained competitively unemployable when compared to her pre-accident job. The Arbitrator noted that, “It is unrealistic to believe that a woman of Ms. Henry’s age, disability and expected level of income would be hired over similarly educated, healthy and younger candidates who would likely have lower salary expectations.”
The Arbitrator went on to state that,
The accident occurred in February 2007. For the majority of her studies Ms. Henry was not engaged in employment and was able to work at her own pace. Notwithstanding this flexibility, it took four years to complete her degree. While Ms. Henry’s extensive experience and academic success might appear to make her an attractive candidate for employment as a nursing or public health instructor, her lack of teaching experience and accommodation requirements negate this. I accept that Ms. Henry enrolled in post-graduate studies as part of a career plan which would have seen her transition from the physically demanding role of emergency department nurse to a more sedentary role in public health. However, the injuries sustained in the accident prevented her from implementing her plan. Therefore, I find that Ms. Henry is entitled to post-104 week income replacement benefits.
With regard to a special award, the Arbitrator made the following comments:
State Farm stubbornly held to the opinion of its medical assessments of 2007 that Ms. Henry was not substantially disabled. Notwithstanding there was compelling evidence that Ms.
Henry continued to require significant medical intervention including shoulder surgery in June 2009.
An insurer has a continuing obligation to adjust a claim. State Farm failed to meaningfully revisit its opinion as the 104 week period elapsed and Ms. Henry had not returned to work.
I find that State Farm unreasonably withheld income replacement benefits from Ms. Henry and as a consequence she is entitled to a special award. As State Farm essentially abdicated its responsibility to adjust the file in respect of the post-104 week period, the award should be at the higher end of that available.
The full decision can be read by clicking below.
Smitiuch Injury Law recently won an arbitration decision, DiMarco and Chubb Insurance Company, at the Financial Services Commission of Ontario (FSCO) regarding what is deemed to be an “accident”.
Marilena DiMarco was riding her bicycle on a training ride for a charitable event when she and her group went through a town that was having a street festival. Because the street was closed the group rode their bicycles on the sidewalk. A van was parked half-way on the sidewalk. When Ms. DiMarco swerved to avoid the van, she lost her balance and fell, hitting the van with her hand in the process. Chubb Insurance refused to accept the incident as a “motor vehicle accident” as defined in The Insurance Act and Statutory Accident Benefits Schedule (SABS) and refused to pay for badly-needed treatment and other accident benefits.
Arbitrator Deborah Pressman stated the following:
In this case, Ms. DiMarco was compelled to manoeuvre on the sidewalk around a vehicle that was parked in her way. This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco. Therefore, there was a direct and proximate cause between the “use or operation” of the automobile and Ms. DiMarco’s injuries.
Peter Cho, an associate lawyer at Smitiuch Injury Law Professional Corporation, represented Ms. DiMarco at the arbitration hearing. He was assisted by Chris Jackson, Accident Benefits Manager.
The decision can be read by clicking on the attached. DiMarco and Chubb Insurance Company of Canada FSCO Decision A10-003967
A recent decision by FSCO Arbitrator Jeffrey Rogers supports that a mediation can be deemed to have failed if it has not been mediated within the 60 day timeframe noted in both The Insurance Act as well as The Dispute Resolution Practice Code.
In the decision, Leone and State Farm, Arbitrator Rogers states the following:
Since the prescribed time for mediation had expired when Mr. Leone filed his Application for Arbitration, there was no jurisdictional barrier to his doing so. This conclusion is consistent with the scheme and intent of the Act, the Schedule and the Rules as they aim to promote prompt payment of benefits and speedy dispute resolution. The legislation and the Rules are all replete with fixed time limits intended to serve this purpose. Accepting State Farm’s position would mean that there is no fixed time for completing mediation. That would render meaningless the requirement in the Act and the Rules for the prompt appointment of a mediator.
Section 281.1 of the Act, section 51(1) of the Schedule and Rule 11 of the DRPC require that an Application for Mediation be filed no later than 2 years from the date the insurer provided written notice of refusal to pay an amount claimed. Accepting State Farm’s submission that the Application is not filed until a mediator is appointed would mean that an insured person does not know whether he or she has met this limitation when delivering an Application to the Commission. It would mean that the period differs from application to application and that close to 1 year of the permitted time was consumed by the delay in this case. Conceivably, if delays increase to the point where it takes 2 years to appoint a mediator, an insured person who attempts to file an Application immediately upon denial would see his or her rights extinguished, before the first step in the dispute resolution process has occurred. The Legislature could not have intended that absurd result.