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October 2013 Archives

Insurance coverage provisions need to remain broad

The Ontario Court of Appeal decision to deny an insurer's attempt to tie attendant-care benefits to the lost wages of family members acting as caregivers is an appropriate response to provisions that should be viewed broadly, Toronto personal injury lawyer Michael Smitiuch says in Law Times.

To read the complete article go to: Advocate Daily

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.

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,

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