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Tuesday, July 18, 2017

 
 
 

 
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Posts Tagged ‘treatment’

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.

Ontario Budget Brings Announcement of Auto Insurance Reforms

Further reforms to Ontario’s Auto Insurance Industry are planned as part of the 2012 Budget announcement made yesterday in Toronto.  Two of these measures include changes to the
definition of catastrophic impairment and further enforcement of auto insurance fraud.

In 2010, the government made major changes to the auto insurance system. As a result, premiums are stabilizing for drivers across Ontario. Building on the success of the 2010 reforms, the government is taking action to tackle fraudulent and abusive practices, base insurance benefits on scientific and medical principles, and ensure its regulator continues to identify and respond to new and emerging issues. The government’s ongoing work in the area of auto insurance, including fraud, should continue to reduce the pressure on premiums.

Some of the key changes to be implemented include:

  • Regulation of health clinics;
  • Other gaps in regulation;
  • Establishment of a dedicated fraud unit;
  • Consumer education and engagement strategy;
  • A single web portal for auto insurance claimants;
  • Development of new Minor Injury Guideline;
  • Make the report of the Superintendent of Financial Services on catastrophic impairment public and move forward to propose regulatory amendments in this area;
  • Engage in a review of the automobile insurance dispute resolution system;
  • Strengthen the [FSCO] Superintendent’s authority regarding rate and risk classification approvals;
  • Support a Superintendent’s review of the profit provision benchmark in auto insurance rate change approvals;
  • Work with insurers to explore the implications of voluntary usage-based auto insurance policies;
  • Harmonize the timing of statutory automobile insurance reviews;
  • Improve solvency supervision of Ontario insurers
  • Update Ontario’s Insurance Act by:
    • Proposing amendments to the life insurance accident and sickness insurance parts of the Insurance Act to enhance consumer protection, reduce regulatory burden, and harmonize
      with other Canadian jurisdictions; and
    • Enhancing the effectiveness of its insurance regulation by proposing amendments to give the Superintendent of Financial Services the authority to impose administrative monetary penalties in the insurance sector.

You can read the Government’s comments on the insurance industry 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.

Judge Declares Mediation “Failed” if not Mediated within 60 Days

A decision from the Superior Court of Justice of Ontario was released that declares a mediation by the Financial Services Commission of Ontario (FSCO) failed if it has not been mediated within 60 days of the application being submitted.

In Cornie v. Security National [2012 ONSC 905], which was heard with three other similar cases, Justice J.W. Sloan renders the following decision:

It currently appears that FSCO’s Dispute Resolution Services’ Mediation Unit is functioning without timelines and has been doing so for years.

The SABS [Statutory Accident Benefits] are for the benefit of injured motor vehicle victims and are often required in a timely fashion.

It makes perfect sense that the legislation and the DPRC [Dispute Resolution Practice Code] refer to a 60 day time limit to deal with such disputes.

In contrast to the injured victims, insurance companies are not in a vulnerable position.  While there is nothing to suggest that these insurance companies are in any way responsible for the delay in mediation, there is no evidence that the delay in mediation is of any real consequence to them.

Justice Sloan found the insurance companies’ postion that accident victims must simply wait to be “preposterous” and suggests that FSCO can continue to try to comply with the 60 day period or seek a change and/or ask for some legislative direction to extend the 60 day period in appropriate circumstances.

It remains to be seen if this motion decision will be appealed.

Toronto Star Article on Lengthy Wait Times at FSCO

The Toronto Star has published an article identifying the lengthy wait times at the Financial Services Commission of Ontario (FSCO) for mediations of accident benefits denied by insurance companies.

Our firm’s own Michael Smitiuch was interviewed and quoted in the article.  He identifies the significant hardship that these delays often mean for clients and notes this to be an access to justice issue.

To read the Toronto Star Article, click here.

The Toronto Sun explores the human side of the “catastrophic” debate

A story written in the Toronto Sun looks at the current debate over the definition of catastrophic impairment and details the ongoing battles of Robert Kusnierz, whos recent Ontario Court of Appeal win supported the combining of physical and psychological impairments for determining a whole body impairment.

You can read the article in full by clicking here.

CBC Toronto Exposes Increase in Auto Insurance Treatment Denials

The Canadian Broadcasting Corporation (CBC) in Toronto recently aired an expose on the increase in denials for medical and rehabilitation treatment by Ontario’s no-fault automobile insurers and the significant delay in obtaining justice for unreasonable denials.

To read the article and watch the archived video, click here.

Ontario Court of Appeal: Desbiens Stands

The Ontario Court of Appeal has reversed the decision of Kusnierz v. Economcial Insurance.

In the Kusnierz v. Economical Insurance decision, Justice Lauwers had determined that it was not permissible to assign percentage ratings in respect of psychological impairments under 2 (1.1)(g) of the Statutory Accident Benefits Schedule (SABS) and combine them with percentage ratings in respect of Kusnierz’s physical impairments under Clause 2(1.1)(f) of the SABS for the purposes of determining whether an individual was catastrophically impaired.

Justice Lawers reviewed the earlier decision of Justice Spiegel in Desbiens v. Mordini but respectfully came to a different conclusion.  Justice Lauwers did not review any of the FSCO decisions on the issue.

This means that both physical and psychological impairment percentage ratings can be combined when determining a catastrophic impairment.

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