1.866.621.1551
Servicing Toronto, Brantford, London and surrounding areas.
Tuesday, September 27, 2016

 
 
 

 
Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Posts Tagged ‘personal injury’

Providing Attendant Care in the Course of Employment, Occupation or Profession: Economic Loss Not Required

If an individual who is involved in a motor vehicle accident is incapable of self-care as a result of their injuries they are eligible to claim Attendant Care Benefits through their own insurance company.  The insurer is only obligated to pay the benefit if the insured person has received the goods or services, has paid or promised to pay the expense, and if the person who provided the goods and services either (A) “did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”, or (B) sustained an economic loss as a result of providing the goods or services to the insured person.  In the case of “B”, the amount payable has been limited to the amount of the economic loss sustained as a result of providing the attendant care.

The first option is normally interpreted as obligating an insurer to pay for a professional service to come into the injured person’s home to provide attendant care, such as a personal support worker.  The second option is normally interpreted as requiring an insurer to pay for any economic loss sustained by a “non-professional” (family member or friend) who provides attendant care to an injured individual.  But what if the family member or friend is a professional personal support worker?

In the Financial Services Commission of Ontario (FSCO) decision, Michael Walsh and Echelon General Insurance Company [FSCO A15-007448], Arbitrator Benjamin Drory confirmed that, if a family member or friend who is a personal support worker provides attendant care to an injured individual, they do not need to sustain an economic loss as a result of providing the attendant care and the amount of attendant care payable is not limited to the amount of any economic loss.

Arbitrator Drory made the following comments in this decision:

I find that a service provider falling into the (A) clause—i.e., one that did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged—does not need to establish economic loss for the purpose of these provisions. This appears to have been a deliberate effort of legislative drafting, and I accept that if the legislature had intended for the provision to read differently, it could have done so.

I also accept that the legislative intent behind these provisions, as advised to me by both parties, was an intention to prevent abuse of the attendant care benefit by family members who are not trained professionally to do it.

The sole question before me is whether the services provided by Mrs. Walsh to the Applicant were done in the course of the employment, occupation or profession in which she would ordinarily have been engaged. I find that the answer is yes, based on both the case law and the legislative intention presented to me.

He goes on to make the following analogy:

If a lawyer working for salary were to offer legal services pro bono to a cause they cared about outside working hours, would they cease being a lawyer during that time because they weren’t being remunerated for it? The answer would quickly be no—and I suspect many might even be offended at the suggestion. The question of what makes one a lawyer should consider one’s ability to be remunerated for it—but it also needs to take into consideration one’s acquired knowledge and skills relevant and/or necessary to the work, and any licensing authorities involved. One does not lose their skill set or status merely because they will not be remunerated financially in undertaking a particular task. I believe the question of what makes one a PSW is analogous—and is consonant with the decisions of Garson, J. and Arbitrator Fadel. I find it in harmony with the ordinary understanding of what it means to be part of a profession, and the common day-to-day usage of that term.

It also fits with the legislature’s intention to restrict access to attendant care benefits by untrained family members and friends reflected in the 2010 and 2014 amendments. Where a family member is a trained professional working in the relevant field, concerns respecting qualification seem to be directly addressed. It would seem odd, as a matter of public policy, to mandate that insureds with trained professionals in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable. As Arbitrator Fadel noted, there is no restriction in clause (A) of the Schedule that mandates a professional healthcare aide be arm’s length, nor do I find it appropriate to read one into it.

This decision can be read in its entirety by clicking here.

Negligence by Restaurants – Can You Sue?

Recently in the news, we heard about a situation where a waiter served a man a meal which contained food he was allergic to even though the man had forewarned the waiter about this allergy. Simon-Pierre Canuel was in a coma for several days after being served salmon tartar to which he has a severe allergy.

This situation gives rise to the question as to whether the waiter (or anyone else) was civilly liable for the mishap – meaning, can Mr. Canuel successfully sue the waiter?

Any action or omission that is the subject of a civil claim (where one person sues another) will fall on a scale from accidental to intentional, with negligent (think of it as extreme carelessness) being near the middle. An intentional act would occur if a restaurant worker intended to act in a way that would clearly harm a person. It is more likely that being served food that you are allergic to would fall somewhere between an accident and negligence. To constitute an accident, it would have to be shown that the result of what the worker did couldn’t be easily expected nor easily prevented. Finally, negligence, which is neither intentional nor accidental, is when a person fails to provide the proper care that the law requires them to give.

This situation would likely be a case of negligence. Negligence occurs when someone acts in a way where they could have expected that harm would occur, or they could have easily prevented the harm. To establish that a defendant was negligent, the most common approach is to prove three things. (1) There is a duty of care (2) that was breached, (3) resulting in damage. This test is in its simplest form, and usually requires a much more detailed analysis, but for our purposes – this should be enough.

First, there must be a duty of care that is recognised by law. To show this, lawyers will look at past cases to see if restaurant workers are expected to act in a way that ensures that the customers they serve stay safe. If there is no such case, then the lawyers will have to establish a new duty of care. The lawyers would have to show that restaurant workers should be expected to make sure the customers don’t come to any harm.

Second, it is necessary to show that the restaurant worker acted or failed to act in the way they should have. The kinds of things that could be expected at a restaurant could include, for example, requiring that the waiter ask about allergies or for the restaurant to have a plan to ensure no contact with dangerous food.

Third, someone or something must have suffered harm or damage and this harm or damage must have occurred because of the restaurant worker’s actions. A severe allergic reaction, causing harm to your health would satisfy this part of the test.

If you should ever find yourself the victim of a severe allergic reaction to food after notifying the server or the restaurant of your allergy, it is always best to consult with a personal injury lawyer to see if your circumstances would give rise to legal action.

The Lawyers Weekly – Use of Video Evidence Increasing

Below is an article written by Michael Smitiuch, which was published in The Lawyers Weekly on June 24, 2016.

The Lawyers Weekly Article - Video Evidence

Peter Cho Named Outstanding New Lawyer by OTLA

Peter Cho

Smitiuch Injury Law’s very own Peter Cho has been named as the recipient of the Martin Wunder, Q.C. – Outstanding New Lawyer Award for 2016 by the Ontario Trial Lawyers Association (OTLA).

The Martin Wunder, Q.C. – Outstanding New Lawyer Award is awarded to an OTLA member in recognition of exceptional commitment to and promotion of the advancement of OTLA’s Mission:  To fearlessly champion through the pursuit of the highest standards of advocacy the cause of those who have suffered injury or injustice. 

The award will be presented to Peter on May 25, 2016.

New Decision Clarifies Insurer’s Examination Requirements

In the decision, Larry Ward and State Farm Mutual Automobile Insurance Company [FSCO A14-010161], Arbitrator Chuck Matheson decided on a preliminary issue as to whether an insured, Mr. Larry Ward, was precluded from proceeding to arbitration on a number of issues due to his non-attendance for insurer’s examinations, which are required under Section 44 of the Statutory Accident Benefits Schedule (SABS).

One of the factors considered by Arbitrator Matheson was whether or not State Farm provided medical or other reasons for the insurer’s examinations.  The arbitrator interpreted the requirement to be that, “…the medical reasons test must tell the Applicant, in an unsophisticated way, why the tests [insurer’s examinations] are reasonable and necessary.”  The words “reasonable and necessary” are new to the consideration of what is required for a medical reason required by an insurer.

The decision also confirms that, just because an insurer has not approved particular treatment or an assessment (for instance, if it is funded by OHIP), does not mean that they are not required to pay for transportation to and from them.  It also confirms that an OCF-18 Treatment and Assessment Plan is not required for goods or services under $250.00, as well as for medications prescribed by a regulated health professional.

Arbitrator Matheson also concluded that case management services, while subject to submission on a treatment plan, are not subject to an insurer’s examination.  He notes that,

I accept the Applicant’s interpretation of section 14 that the “virtual account” called medical and rehabilitation benefits shall pay for the specified benefits listed in sections 15, 16 and 17. It does not mean, however, that section 17’s case manager benefit is in fact a Medical or Rehabilitation Benefit, per se. The legislature severed the case manager because it is not a specified Medical or Rehabilitation Benefit. The case manager’s function is to coordinate the specified benefits of sections 15 and 16 in order help the insured person to attend and claim said specified Medical/Rehabilitation and/or Attendant Care Benefits for a catastrophically impaired person.

This decision can be read in its entirety by clicking on the link below.

Ward and State Farm – Medical Reason, Transportation

Proposed Amendments to Ontario Automobile Insurance Dispute Resolution System

The Ontario Government has released its proposed amendments to the Insurance Act regulations regarding the Ontario Automobile Insurance Dispute Resolution System (AIDRS).

Effective April 1, 2016, an individual who wishes to dispute a denial by an insurance company for statutory accident benefits will go through the Ministry of the Attorney General’s License Appeal Tribunal (LAT) and not the Financial Services Commission of Ontario (FSCO).

The proposed amendments include the following:

  • Applications for mediation, neutral evaluation, or the appointment of an arbitrator for arbitration will not be accepted by FSCO after March 31, 2016.
  • Applications to the Director of Arbitrations for appeals may only be made where the application for the appointment of an arbitrator was received by FSCO on or before March 31, 2016.
  • Applications to the Director of Arbitrations for variation or revocation may only be made where the application for the appointment of an arbitrator was received by FSCO on or before March 31, 2016.
  • The Office of the Director of Arbitrations shall be continued until the date on which all notices of appeal and all applications for variation or revocation have been finally determined.
  • Statutory Accident Benefits Schedule (SABS) provisions that apply to the dispute resolution process at FSCO will continue to apply, as they read on March 31, 2016, to all applications that were received by FSCO before the transition date but are not finally determined before that date. The SABS will also be amended, where necessary, to apply to applications filed at the LAT on or after April 1, 2016.

Comments on the proposal are due by January 23, 2016.

The posting can be read in its entirety by clicking on the link below:

http://www.ontariocanada.com/registry/view.do?postingId=20442&language=en

FSCO Announces Changes to SABS, Attendant Care Hourly Rates

The Financial Services Commission of Ontario (FSCO) has announced major changes to the Statutory Accident Benefits Schedule (SABS), effective June 1, 2016.

These changes include the following:

  • Medical and Rehabilitation Benefits, as well as Attendant Care Benefits, will be combined with respect to limits
    • For non-catastrophic claims, the maximum will be $65,000.00 for up to five years from the date of accident
    • For catastrophic claims, the maximum is $1,000,000.00, over a lifetime
  • Non-Earner Benefit – $185.00 per week, payable after four weeks but only to a maximum of two years following the accident
  • Catastrophic Impairment Designation – a whole new criteria for determining catastrophic impairment will be in force

FSCO has provided a new Attendant Care Hourly Rate Guideline, reflecting an increase to $11.25 per hour, effective October 1, 2015.

The Professional Services Guideline fees for 2015 remain unchanged from the previous year.

The bulletin can be read in its entirety by clicking on the link below:

http://www.fsco.gov.on.ca/en/auto/autobulletins/2015a/Pages/a-06-15.aspx

Dockets Not Necessarily Required for Costs

A recent judicial decision determined that a law firm’s dockets are not normally required to be produced in order for a court to fix costs under the Rules of Civil Procedure.

In Bhatt v William Beasley Enterprises Limited [2015 ONSC 4941 (CanLII)], Justice Faieta stated that the mere size of the amount of costs being claimed is not a sufficient reason to require a party to undertake the expense of preparing and vetting their dockets.

Peter Cho and Luke Hamer, both of Smitiuch Injury Law, represented the Bhatt family in this matter.

The decision can be read in its entirety by clicking on the link below.

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4941/2015onsc4941.html

FSCO Announces Amendments to Automobile Insurance Legislation and Regulations

The Superintendent of Financial Services for the Financial Services Commission of Ontario (FSCO) has released a bulletin today (A-05/15) outlining amendments to Ontario’s automobile insurance legislation and regulations.  Below is the content of this bulletin:

With this bulletin, the Financial Services Commission of Ontario (FSCO) is highlighting a number of recent reforms to automobile insurance legislation and regulations.

These reforms are the result of the announcements made by the government in the 2015 Ontario Budget. They include amendments to the Insurance Act, and to Regulation 664 (Automobile Insurance) and Regulation 461/96 (Court Proceedings For Automobile Accidents That Occur on or After November 1, 1996).

In the upcoming months, FSCO will issue additional bulletins relating to the implementation of other automobile insurance reforms announced in the 2015 Ontario Budget.

The amendments are listed and outlined below:

Ontario Regulation 664 (Automobile Insurance)

This regulation has been amended to require that all insurers offer a discount to policyholders for the use of winter tires. The winter tire discount must be made available for contracts issued or renewed on or after January 1, 2016, for all eligible private passenger automobile policies. Insurers are encouraged to implement the discount before January 1, 2016, where feasible.

Insurance companies that do not currently offer a winter tire discount must file an application for approval with FSCO no later than August 28, 2015. Insurers should use the Private Passenger Automobile Filing Guidelines – Simplified for these applications and not off-balance this discount.

Insurers are required to have a process in place to notify their policyholders of this new discount.

For inquiries regarding the filing process for this discount, contact your Rate Analyst in the Automobile Insurance Services Branch at FSCO.

Ontario Regulation 461/96 (Court Proceedings For Automobile Accidents That Occur On Or After November 1, 1996)

This regulation has been amended to ensure that the deductible amounts for damages for non-pecuniary loss (pain and suffering) reflect the effects of inflation since 2003.

The regulation amendments include the following:

The $30,000 deductible amount prescribed in the case of damages for non-pecuniary loss is adjusted to $36,540 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year.

  • The $15,000 deductible amount prescribed in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, is adjusted to $18,270 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year.

The existing endorsement [Added Coverage To Offset Tort Deductibles (OPCF 48)] to reduce the tort deductible amounts will remain unchanged.

Insurance Act, R.S.O. 1990, c. I.8

The Insurance Act is amended to adjust the monetary thresholds beyond which the tort deductible does not apply to reflect inflation since 2003, and link the monetary thresholds to future changes in inflation.

The legislative amendments include the following:

The monetary threshold beyond which the new deductible amount of $36,540 does not apply is adjusted from $100,000 to $121,799, in the case of damages for non-pecuniary loss from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this new threshold amount will be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for that year.

  • The monetary threshold beyond which the new deductible amount of $18,270 does not apply is adjusted from $50,000 to $60,899, in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this new threshold amount will be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for that year.
  • The Insurance Act has been amended in subsection 267.5 (9) to require that the tort deductible be taken into account when determining a party’s entitlement to costs in an action for damages from bodily injury or death arising directly or indirectly from the use or operation of an automobile.

Please ensure that your claims and underwriting staff, and any other staff who may be affected, are informed of these changes. Also ensure that you make any operational changes needed to implement these reforms by the effective date.

Copies of Regulations and Legislation

The Insurance Act and regulations can be downloaded from the e-laws website at www.e-laws.gov.on.ca . The proclamation order for the legislative amendments to the Insurance Act is expected to be published in a future edition of The Ontario Gazette.

Costs for Examination for CAT Assessment, Form 1 Completion and Disability Certificate Not Out of Med-Rehab Limits

A recent decision by the Financial Services Commission of Ontario (FSCO) confirms that the costs for completion of a catastrophic assessment are not subject to the medical and rehabilitation benefit limits.

In Lee-Anne Henderson and Wawanesa Mutual Insurance Company [FSCO A14-001758], Arbitrator Patrick Bowles was asked to consider whether or not this was the case.  The Applicant, Ms. Henderson, had requested that the costs for the completion of a catastrophic assessment be paid by the insurer.  Wawanesa denied payment, stating that Ms. Henderson had reached the maximum payable for medical and rehabilitation benefits in the amount of $50,000.00, therefore there was no further benefits available to fund the assessments.

Arbitrator Bowles accepted Ms. Henderson’s argument that the only assessments that are subject to the medical and rehabilitation benefit limits are ones for the purpose of claiming a medical and rehabilitation benefit.  Since a catastrophic determination is not for the purpose of a benefit per se (rather, it is for a determination on the amount of benefits available), it is not subject to the limits, and should properly be allocated as a claims expense by the insurer.

While it was not directly considered in this decision, it follows that the costs for completion of an Attendant Care Needs Assessment (Form 1), as well as a Disability Certificate (OCF-3) are also not subject to payment under the medical and rehabilitation benefits, as they are for an attendant care benefit and for specified benefits, respectively.

If an insurer is claiming that the medical and rehabilitation benefits have reached the limits, it is helpful to obtain an itemized listing of all payments made to determine if any payments have been incorrectly allocated.  This could free-up additional funds that may be needed by an insured for treatment.

This decision can be read in its entirety by clicking on the link below.

Henderson, Lee-Anne and Wawanesa – COE for CAT not in MR benefit limits

Page 1 of 712345...Last »