On November 26, 2010 our client, Mr. Marcus, suffered serious personal injuries when he fell on a TTC bus at the age of 89. Mr. Marcus applied for and received statutory accident benefits from TTC Insurance, including an attendant care benefit. He also sought a determination of catastrophic impairment (“CAT”). Continue reading
A recent arbitration decision in Mujku v State Farm provides a useful analysis for determining catastrophic impairment due to a mental or behavioural disorder under the Statutory Accident Benefits Schedule. The applicant, Mrs. Mujku, was injured in a rear end collision in November, 2005. The collision itself, by all accounts, was relatively minor: The vehicle sustained $703.34 worth of damage and Mrs. Mujku suffered soft tissue injuries. Following the collision, Mrs. Mujku’s pain steadily worsened and her mental health deteriorated. Eventually, Mrs. Mujku was diagnosed with a number of recognized mental and behavioural disorders, including, a major depressive disorder and a pain disorder with associated psychological factors.
Arbitrator Jeffrey Rogers decided that Mrs. Mujku met the definition of catastrophic impairment due to mental or behavioural disorder under the Statutory Accident Benefits Schedule. In order to be found catastrophically impaired, an applicant must have a marked impairment in one of four areas of functioning: 1) activities of daily living; 2) social functioning; 3) concentration, persistence and pace; or 4) deterioration or decompensation in work or worklike settings. Continue reading
The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.
There is good news to report to anyone who has unjustifiably been denied access to any statutory accident benefit that they have applied for or has had to deal with a dispute over the determination of catastrophic impairment.
Most people reading this blog will be familiar with the dispute resolution procedure under the Insurance Act. Most people will recognize that the procedure is badly broken. Before a dispute can proceed to Court or to a binding Arbitration, a mediation must be held at the Financial Services Commission of Ontario. If the mediator is unable to resolve the dispute, only then are you able to proceed to a final determination of the issue. The difficulty is that mediations are being scheduled more than a year from the filing of an application in many instances.
Now for the good news. Justice Sloan ruled on February 8, 2012 in the case of Cornie v. Security National, that section 19 of the Dispute Resolution Practice Code requires FSCO to conduct a mediation within 60 days of the filing of the Application. If FSCO is unable to schedule a hearing within this time frame, the mediation is deemed to have failed and the claimant can proceed to a final determination.
In rejecting the defence arguments in the case, Justice Sloan says “The insurance companies take the position that the accident victims must simply wait. To entertain this argument could mean that an accident victim might have to wait 100, 300 or 500 days for mediation. I find that submission preposterous.”
Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning. The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company. In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score. Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.
Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.
On February 26, 2000, Michael Downer pulled into a Scarborough gas station in his Jeep. He left the engine on the Jeep running while he sat in the driver’s seat and separated money from his wallet to pay for gas. When Mr. Downer looked up from his wallet, he saw 3 or four young men around his jeep. The men began hitting Mr. Downer while pulling him out of the vehicle. Mr. Downer put the Jeep into reverse to get away from the men. One of the men tried to force the gear into park while Mr. Downer reversed out of the gas station and then drove off. A short time later, he became aware that he had suffered injuries in the incident.
Was the carjacking an accident?
The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident. The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment. This is not akin to a lottery ticket. A catastrophically injured person must still prove that the benefits are reasonable and necessary. All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need. Last week, an expert medical panel completed a review of the definition of catastrophic impairment. The recommendations are based on a technical review. In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.
The text of the article is reproduced below:
‘Catastrophic impairment’: What’s at stake
Published On Sun Apr 17 2011
Dale OrlandoPresident of the Ontario Trial Lawyers Association
“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”
After September 1, 2010, car insurance companies and brokers across Ontario will be presenting consumers with new choices for their auto insurance renewals. A daunting process is ahead. The insurance system in Ontario is one of the most complicated systems in North America.
Even though car insurance is a major budgetary item for many families, many consumers are unfamiliar with the coverage they actually have. After September 1, consumers will be given a number of choices as to amount of benefits they wish to purchase. By giving such a choice, the intent was to give them a break on premiums being paid.
The new basic auto policy being sold contains far less benefits than what existed before September 1. With benefits being drastically reduced, one would of course expect to see some significant reductions in how much one has to pay in premiums.
Therefore it is absolutely critical that each consumer ask their insurance company and brokers what are they buying and at what price. Like shopping in a supermarket, each item ought to have a price tag. Continue reading
[This is the fifth of a five part series by Patrick Brown on upcoming changes to auto insurance]
Injured accident victims will have a significant amount of their benefits reduced due to assessment costs. Despite the dramatic slashing of benefits reported in my previous blogs, consumers will also face further reductions based on the fact that the cost of assessments will come out of the amount of benefits available.
For example, if a consumer is injured in a car accident and the injuries are not considered to be catastrophic, they presently have $100,000 in benefits for medical and rehabilitation treatment. Any assessment costs to obtain the benefit are over and above the $100,000.
Under the new standard policy without buy ups, the consumer will only have $50,000 available in benefit dollars. That $50,000 includes assessments costs. Therefore, if $5,000 is paid for an assessment to obtain the benefit, then the amount available to the injured person is reduced down to $45,000. Continue reading
Patrick Brown has made a series of posts recently discussing the changes to auto insurance in Ontario. In today’s Toronto Star, James Daw provides a useful illustration of what a lower premium may cost you in the long run, in terms of reduced benefits and coverage.
[This is the fourth part of a series by Patrick Brown on upcoming changes to Ontario’s Auto Insurance Laws]
Starting September 1, 2010, many family members who provide basic care needs to their injured family members will be cut out from receiving any compensation for these essential services. The new law eliminates any benefits going to a family member who help the disabled family member unless they show they suffered an “economic loss” because of it.
This will have a devastating impact on families who chose to have family members look after their severely injured loved ones. The new law was passed at the request of the insurance industry. It will force families to use outside agencies. Right now for instances, if a family member is hit by a car and suffers serious injury to the extent they can no longer dress, bathe or feed themselves, a benefit is available up to either 3,000 or 6,000 per month so that other families members can help. Under the new system, this funding will stop unless mom, dad or sibling can show they lost money somehow [i.e. they have to quit work or miss work without pay]. The only way to access the benefit is to have a third party care agency come in and provide the services. Continue reading
This is the second of a series where Patrick Brown discusses the upcoming changes to auto insurance.
The Ontario Government has now stepped up and restored both dignity and respect to the senior community and those families that have lost a loved one at the hands of a bad driver.
The Minister of Finance announced that effective September 1, 20010, the deductible in auto related wrongful death cases will be eliminated. The right to a grandparent to receive compensation when they lose a grandchild will be restored. As well, grandchildren will also be able to advance meaningful claims for compensation when they lose a grandparent to a negligent driver.
This is the first of a series where Patrick Brown discusses the upcoming changes to auto insurance.
Starting this September, if you are injured in a car accident, the benefits available to assist you in getting better will be drastically reduced.
The insurance industry has set it self up, once again, for record profits. Following intensive lobbying by the insurance industry, the Ministry of Finance released the new Regulations for Auto Insurance on www.e-laws.gov.on.ca. These regulations are now law. As of September 1, 2010, all persons who are injured in an incident involving a car (this includes cyclists and pedestrians) will face reduced benefits when hurt.
Dollars used to care for the injured victims will be deflected away from the insurance industry to the public health system. The last time the government gave a break to the auto insurance industry was in 2003 when they reduced compensation to be paid out to victims of accidents. Back in 2003 the industry was crying poor and pressing the panic button on rising health care costs and increased premiums. After the 2003 changes were made profits soared. In 2004, Canada’s property and casualty insurance industry made $4.7 billion. It went on to make $4.6 billion in 2005 and about $5.8 billion in 2006. Continue reading