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Posts Tagged ‘personal injury’

Ontario Court of Appeal: It is possible to work and be entitled to a Non-Earner Benefit

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:

[43] 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.

[44] 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.

FSCO Awards MIG Protocol Contract

Dr. Pierre Côté has been awarded the consulting contract by the Financial Services Commission of Ontario (FSCO) to develop the Minor Injury Protocol.  Dr. Côté is Associate Professor, Dalla Lana School of Public Health, at the University of Toronto.

According to the FSCO website, “Scientists and other experts will contribute to the development of an evidence-based Minor Injury Treatment Protocol (MITP) that will form the basis of a new Minor Injury Guideline.  The protocol will be used by insurers and health care providers when treating minor injuries resulting from automobile accidents and ensure that there is an extensive continuum of care based on current and scientific and medical evidence.  The MITP will include clinical prediction rules to screen for patients who may be at higher risk for developing chronic pain and disability. In addition, it will focus on treatment outcomes and provide health care providers with numerous milestones that could be used to measure progress.”
No details with regard to timelines for the protocol were released.

Michael Smitiuch Quoted Again in the Financial Post

Smitiuch Injury Law’s Principal, Michael Smitiuch, has been quoted again by the Financial Post in an article regarding misrepresentation on insurance policies.

You can read the Financial Post article by clicking here.

Amount of Attendant Care Payable is NOT Limited to the Extent of the Economic Loss Suffered

A recent decision delivered by Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, 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. In the decision, Justice Ray stated the following:

A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured – and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured as described in the Form 1.

The decision can be read in its entirety here: Henry v Gore Mutual Insurance Company, 2012 ONSC 3687

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.

Financial Post article on Accidental Death Insurance quotes Michael Smitiuch

Smitiuch Injury Law’s Principal, Michael Smitiuch, was interviewed and quoted in an article on accidental death insurance in the Financial Post.

You can read the article by clicking here.

Medical and Legal Communities Speak Out Against Proposed Changes to “Catastrophic” Definition

The Ontario Trial Lawyers Association (OTLA) and Alliance of Community Medical and Rehabilitation Providers has launched a massive media campaign against proposed changes to the definition of a catastrophic impairment for victims of motor vehicle accidents.

The changes being considered, already posted on our blog (you can access this blog article by clicking here), would significantly reduce the number of accident victims with serious injuries from having their claims deemed as catastrophic.

For example, a paraplegic who is able walk just a short distance would not be deemed catastrophic, even though their medical and rehabilitation needs would be very significant.  Under the proposed changes, these individuals would have to pay for any treatment beyond the non-catastrophic medical and rehabilitation benefits limit of $50,000.00.  Most rehabilitation services are not covered under OHIP.

If an individual’s injuries are deemed “catastrophic” their accident limits change as follows:

  • Medical and Rehabilitation benefits increase from $50,000.00 over 10 years to $1,000,000.00 over a lifetime
  • Attendant Care benefits increase from $36,000.00 over two years (to a maximum of $3,000.00 per month) to $1,000,000.00 over a lifetime (to a maximum of $6,000.00 per month)
  • The right to the services of a case manager to help coordinate their medical and rehabilitation needs
  • Housekeeping and Home Maintenance benefits (available for non-catastrophically injured victims, but only if optional benefits were purchased under their insurance policy)

The advertisement will run in major newspapers across Ontario over the course of this week and the next.

Please click on the link below to see the advertisement.

Catastrophic Injuries Media Campaign Ad

These changes would be in addition to the massive cutbacks to accident benefits implemented in September 2010.  Auto insurers are currently reporting significant profit margins.

We encourage all concerned individuals to contact their local Member of Provincial Parliament (MPP) immediately to express their concerns with these proposed changes.

Toronto Star: Auto Insurers Routinely Deny Treatment Plans

An article in today’s Toronto Star addresses the issue of an increase in denials of treatment plans by auto insurers for people who are injured in automobile accidents.

It is reported that the Ontario Government intends to hold public hearings on auto insurance.

You can read the entire article by clicking here.

FSCO Releases 2012 Draft Statement of Priorities

The Financial Services Commission of Ontario (FSCO) has released its draft Statement of Priorities for 2012.

Many of the priorities focus on changes to the auto insurance sector.  They include the following:

  • Continuing to assess the extent of auto insurance fraud and consider the recommendations of the task force when their report is released in the Fall of 2012;
  • Exploring ways to utilize the Health Claims for Auto Insurance (HCAI) system to detect and prevent fraud;
  • Implement auto insurance recommendations made in the Auditor General of Ontario’s 2011 Annual Report;
  • Undertake long-term auto insurance reform initiatives, including review of the Minor Injury Group (MIG) protocol and changes to the catastrophic impairment criteria;
  • Reduce the mediation backlog; and
  • Conduct market conduct audit reviews of compliance with the 2010 auto insurance reforms including Statutory Accident Benefits;

The entire draft Statement of Priorities can be read by clicking here.

The Attendant Care Needs Assessment (Form 1): It is what it is

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.

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