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Posts Tagged ‘personal injury’

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

Client Involved in an “Accident”: FSCO Arbitrator

Our firm successfully represented a client in an arbitration hearing through the Financial Services Commission of Ontario (FSCO).

D.C. (initials are being used, at our client’s request) was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground.  D.C. does not recall the details of the actual impact, but did recall being struck by a white vehicle.  The vehicle did not stop and there were no known witnesses.

D.C.’s bicycle was damaged to the point that he could not ride it home.  The damage was seen by his wife and his brother-in-law.  Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash.  D.C. was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence.  Additionally, the incident was not reported to police, as D.C. did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses.

He went home, scraped and bruised, but otherwise felt fine.  The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma (acquired brain injury), which necessitated a full craniotomy.  Several months later, in the course of his rehabilitation, he was advised to seek legal advice, since he could be eligible for accident benefits.  D.C. called, and then retained, Smitiuch Injury Law.

An accident benefits claim was started with D.C.’s insurer, Aviva Canada.  Aviva accepted D.C.’s accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits.  However, once some benefits were denied and were then disputed, Aviva took the position that D.C. was not involved in an “accident”, as defined in the Statutory Accident Benefits Schedule (SABS).

Luke Hamer, assisted by Chris Jackson (Accident Benefits Manager), represented D.C.  Both the client, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle.  Based on their description, a forensic engineer was retained, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle.

Based on the testimony of the witnesses, the arbitrator ruled in favour of D.C.  As a result, he will continue to be eligible to receive accident benefits, which he will likely require for the rest of his life.

The redacted arbitration decision can be read it its entirety by clicking on the link below.

DC and Aviva Canada (Redacted) dated July 3 2015

Smitiuch Injury Law Obtains Justice for Clients at Trial

We are very proud of Peter Cho and Luke Hamer, both of Smitiuch Injury Law, in the recent trial win on behalf of Shivam Bhatt.

Shivam was 11 years old at the time and was seriously injured on a ride at Toronto’s Centre Island.

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

Bhatt et al. v. William Beasley Enterprises Limited Released June 12, 2015

Genie Boom Crane is an “Automobile”: FSCO Arbitrator

Note: This decision was overturned on appeal.

A new arbitration decision from the Financial Services Commission of Ontario (FSCO) has determined that a “Genie Boom Crane” is an “automobile” under the Statutory Accident Benefits Schedule.

The decision, Joseph Beattie and Unifund Assurance Company [FSCO A13-005289], describes the Genie as, “a four-wheeled mobile crane, propelled by its own motor”, which is used to elevate a worker to perform a maintenance function.

In this particular case, the Applicant, Mr. Beattie, was operating the crane on a private parking lot.  The ground level collapsed into the level below, injuring him.  Mr. Beattie applied for accident benefits through his own insurance company, Unifund Assurance.  Unifund took the position that the crane was not an “automobile” at the time and place when the structure collapsed and was, therefore, not an “accident”.

The arbitrator found that, since the crane was a “vehicle propelled or driven otherwise than by muscular power” and did not meet the specific exclusions under the section of the Highway Traffic Act, it was a vehicle.  Since it was used off-road, it did not require compulsory insurance, thereby not making it subject to the provisions of the Insurance Act.

The entire decision can be read by clicking on the link below.

Beattie and Unifund – Genie Boom – Accident

FSCO Releases New Professional Services Guideline

The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline, which applies to expenses related to services provided by health care providers rendered on or after September 6, 2014.

A copy of the new guideline can be found at the link below.

2014 FSCO Fee Guidelines

FSCO Issues Revised Minor Injury Guideline and OCF-18

The Financial Services Commission of Ontario (FSCO) has released a revised Minor Injury Guideline (MIG) as well as a revised Treatment and Assessment Plan (OCF-18).  Both of these become effective February 1, 2014.

These revisions reflect the changes to be made to the Statutory Accident Benefits Schedule (SABS) on February 1, 2014.

To access the FSCO Bulletin, as well as the documents, click here.

More Changes to SABS on February 1, 2014

The Government of Ontario has announced upcoming changes to the Statutory Accident Benefits Schedule (SABS), effective February 1, 2014.

These changes include:

  • A requirement that, in order for an insured with a minor injury to be considered outside of the Minor Injury Guidelines, documentation will need to be provided of, “…a pre-existing medical condition that was documented by a health practitioner before the accident…”
  • If a “non-professional” is providing attendant care, the amount payable by the insurer will be limited to the actual amount of the economic loss sustained.
  • Disallowing an insured to re-elect to a new benefit (income replacement, non-earner or caregiver) regardless of any change in circumstances.

The amendment can be reviewed in its entirety by clicking here.

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.

Balancing Lower Premiums with the Bottom Line

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.

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.

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