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Posts Tagged ‘personal injury’

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.

Smitiuch Injury Law now in London, Ontario

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.

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:

Annual Accident Benefits Seminar for Health Care Professionals on September 25th

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 protected].

A copy of the invitation can be accessed by clicking here.

FSCO: No Raise for Treating Professionals in 2013

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.

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

Ontario Government Announces Strategy to Reduce Auto Insurance Premiums

The Ontario Government has announced its strategy to reduce auto insurance premiums.

A news release, issued on April 30, 2013, identifies that the Government will be introducing legislation to address the following:

  • Require a premium reduction of 15 per cent on average.
  • Require insurers to offer lower premiums to consumers with safe driving records.
  • Provide the Superintendent of Financial Services with the authority to require insurers to file new rates.
  • Expand and modernize the Superintendent’s investigation and enforcement authority, focusing on fraud prevention.
  • Give the Financial Services Commission of Ontario the authority to license and oversee health clinics and practitioners who invoice auto insurers.
  • Make the Superintendent’s Guidelines, incorporated by reference in the Statutory Accident Benefits Schedule, binding.

The news release can be read in its entirety by clicking here.

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