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Accident Benefits Archives

Ontario Court of Appeal Rules on Pastore Decision in Favour of Claimants

A major decision with respect to the definition of "catastrophic" under the Statutory Accident Benefits Schedule was released by the Ontario Court of Appeal today. It its decision, Pastore v. Aviva Canada [2012 ONCA 642], the Court has supported the findings of the Director's Delegate at the Financial Services of Ontario, who decided that only one functional impairment due to a mental or behavioural disorder at the marked level is necessary to declare a person's injuries as catastrophic.  Furthermore, the decision supports that a marked psychological impairment caused by physical pain is valid for the purpose of determining a catastrophic impairment. The decision can be read in its entirety by clicking here.

Attendant Not Required to Provide Academic Records to AB Insurer

An arbitrator at the Financial Services Commission of Ontario (FSCO) has ruled that a person providing attendant care for an insured is not required to provide their academic records to the accident benefits insurer. In Mary Anthonipillai and Security National Insurance Co./Monnex Insurance Mgmt. Inc. [FSCO A11-001168] the daughter of the claimant, Mary Athonipillai, was providing housekeeping and attendant care services for her mother while she was attending university.  The insurer, Security National, requested a copy of the daughter's academic records because it took the position that the amount of attendant care and housekeeping services provided seemed excessive if the daughter was attending school at the same time.  It was unknown if she was a part-time or full-time student and the daughter ignored all requests from the insurer for this information.  Security National believed that the lack of this information was prohibitive to any meaningful settlement discussions. Arbitrator Jessica Kowalski stated,

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:

Health Care Providers: Congratulations, You're Getting A Raise!

The Finanacial Services Commission of Ontario (FSCO) has released the 2012 Professional Fee Guidelines. According to the FSCO website, the revised guideline increases the maximum hourly rates by 2.9 per cent.  This increase is based on the 2011 Consumer Price Index (CPI) and applies to services rendered on or after July 14, 2012. You can read a copy of these guidelines by clicking on the line below.
2012 FSCO Fee Guidelines

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:

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:

Smitiuch Injury Law Wins FSCO Decision: Swerving on a Bicycle to Avoid Vehicle is an "Accident"

Smitiuch Injury Law recently won an arbitration decision, DiMarco and Chubb Insurance Company, at the Financial Services Commission of Ontario (FSCO) regarding what is deemed to be an "accident". Marilena DiMarco was riding her bicycle on a training ride for a charitable event when she and her group went through a town that was having a street festival.  Because the street was closed the group rode their bicycles on the sidewalk.  A van was parked half-way on the sidewalk.  When Ms. DiMarco swerved to avoid the van, she lost her balance and fell, hitting the van with her hand in the process.  Chubb Insurance refused to accept the incident as a "motor vehicle accident" as defined in The Insurance Act and Statutory Accident Benefits Schedule (SABS) and refused to pay for badly-needed treatment and other accident benefits. Arbitrator Deborah Pressman stated the following:

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