Posts Tagged ‘personal injury’
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.
In this week’s edition of The Lawyers Weekly (October 25, 2013), Michael Smitiuch provides an analysis of the “tug of war” between auto insurers and consumers.
Although most in the industry agree that fraud is a concern that needs to be addressed, it is the potential “other cost-reduction initiatives” that are a source of considerable debate.
The Lawyers Weekly article can be read in its entirety by clicking here.
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.
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.
Michael Smitiuch, Principal Lawyer at Smitiuch Injury Law Professional Corporation, is pleased to announce the opening of our office in London, Ontario. This is in addition to our offices in Toronto and Brantford.
Our London office is located at 380 Wellington Street, Tower B, 6th Floor, London, Ontario N6A 5B5. Our London telephone number is 519-964-2747.
Smitiuch Injury Law is pleased to host its annual seminar, entitled “Accident Benefits: Practical Issues for Health Care Professionals.” It will be held on Wednesday, September 25, 2013 at the Brantford Golf and Country Club.
The keynote topic at this year’s seminar will be on “Living With and Caring for an ABI Survivor – A Mother’s Perspective”. Bernie Perry, the mother of an acquired brain injury survivor, will identify the struggles and successes she has experienced in her daughter’s recovery and rehabilitation. Bernie will be accompanied by her case manager, Jody Abbot and Dr. Diana Velikonja, a clinical neuropsychologist at Storrie, Velikonja and Associates in Burlington.
The afternoon will also provide an update on the latest news and case law in Ontario Accident Benefits, followed by an open forum with an expert panel to answer participant’s questions. The expert panel will be composed of Ms. Heather Driver (Financial Services Commission), Tamara Forbes (Forbes Health Management), Anna-Marie Musson (Miller Thomson) and Chris Jackson (Smitiuch Injury Law).
The afternoon will begin with registration and lunch at 11:30 a.m. and will end with a cocktail reception and social at approximately 3:30 p.m.
This event is 100% complimentary.
If you wish to attend please RSVP no later than September 18, 2013 by calling 519-754-1558 or by email to email@example.com.
A copy of the invitation can be accessed by clicking here.
The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline for 2013.
According to the FSCO website, “The hourly rates are unchanged from the 2012 level. This is in line with the auto insurance rate reduction strategy outlined in the government’s 2013 Spring Budget.” It has also added a category for kinesiologists, who are now regulated health professionals in Ontario.
A copy of the 2013 Professional Services Guideline is available by clicking here.
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.