It is important for social workers and health care providers to understand what benefits are automatically available to those injured in a motor vehicle accident. We regularly publish recent legal findings related to accident benefits here. You can also Subscribe to our Electronic Newsletter to be kept informed on this topic.
Read the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule
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| Release Date |
Title |
| Dec 02, 2012 |
| Insurer medical examination request reasonably necessary for full assessment. |
| Hardy and Echelon – INSURER REQUEST TO ATTEND EXAMINATION; appropriateness of request requires a balancing of interest of parties and context of particular facts; reasonable and necessary; insured had submitted several comprehensive Catastrophic impairment assessments; fairness dictates that an insurer be allowed to assess insured in response to insured’s assessments; insured refused to attend neuropsychiatric assessments arranged by insured on 4 occassions; full and final hearing not possible if insured cannot conduct full assessment; in context of catastrophic assessment, neuropsychiatric and occupational therapy assessments reasonably necessary. |
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| Dec 02, 2012 |
| FSCO mediation "failed" after 60 days and insured may proceed to next step. |
| Hurst and Aviva – Denied benefits and Dispute Resolution process; when was mediation considered “failed” then allowing insured to commence next steps; when did 60 day period start after mediation application submitted; FSCO submitted that 60 day did not start until application found to be “complete” by FSCO staff; “perfect sense” that FSCO rules create a 60-day time limit to deal with dispute after which insured may commence court action or proceed to arbitration; mediation process needs to be timely and effective; no reason to depart from the ordinary meaning of the legislation; the mandatory mediation process is to be completed within 60 days of filing an application. |
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| Dec 02, 2012 |
| Insured's experts' opinions consistent with evidence of family and treating physicians. |
| Mr. M.G. and Economical – CATASTROPHIC IMPAIRMENT; whole person impairment or marked impairment; pre accident nurse with an “busy, happy and highly productive” life; active with family, career and church; insured was highly motivated after car accident; failed attempts at work; chronic pain and depression; spending most of time alone in basement room doing little; one “marked” impairment rating sufficient; experts disagreed on severity of impairments and degree daily functioning impaired; insured’s assessors opinions more consistent with first-hand accounts from family members and treating practitioners; validity issues on testing explained by language and cultural issues; 3 marked impairments relates to 40% impairment rating; when combined with ratings for physical impairments the total exceeded 55%; insurer’s assessment team did not consult with each other; special award against insurer who reinstated income replacement benefits just prior to arbitration and did not provide explanation for 2 and half year deal. |
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| Oct 14, 2012 |
| GSC score taken 4 days after accident within reasonable time period. |
| Hodges and Security National – Catastrophic impairment; GCS score of 9 or less; insured’s initial scores at 11; insured sedated and intubated by air ambulance attendants and GCS score lowered to 3; where level of consciousness is untestable cannot satisfy test for catastrophic impairment; GCS score of 9 assessed 4 days after the accident; reasonable to employ GCS test 4 days after the accident as insured suffering from brain bleed; in circumstances GCS test was given within a reasonable period of time 4 days after the accident. |
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| Oct 14, 2012 |
| "Accident" occurred even where there was no contact with vehicle. |
| Hersi and ACE INA Insurance – Definition of “Accident”; pedestrian involved in accident with bus; eye witness and police investigation concluded that bus did not hit pedestrian; whether insured was struck or not, the use and operation of the bus directly caused insured’s fall and injuries; does not require direct physical contact; use of automobile sets in motion a train of events which brings about offence; staged accident theory dismissed as insured had fractured hip at the scene; insured likely “shocked” by bus approaching crosswalk; may have been some contact with an outstretched arm resulting in the fall to the ground and fractured hip. |
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| Oct 13, 2012 |
| One marked impairment meets definition of Catastrophic Impairment. |
| Pastore and Aviva Canada – CATASTROPHIC IMPAIRMENT; how many marked impairments?; insured was pedestrian who suffered significant pain and impairment due to broken left ankle; multiple surgeries, altered gait and knee replacement; Dependent on others for most basic personal needs; marked impairment in activities of daily living; courts must accord deference to the tribunal for this type of decision; the word “a” only requires a single function to be at the marked impairment level; concept of “catastrophic impairment” is to provide an inclusive and not a restrictive meaning; Court of Appeal found arbitrator’s original decision of one marked impairment sufficient to meet definition of Catastrophic Impairment was reasonable. |
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Disclaimer: This blog is not intended to provide specific legal advice. This information should never replace the advice of a lawyer familiar with the specific facts relating to your particular situation. Reviewing our website should not be viewed as having sought professional advice.
You may also be interested in viewing these recent presentations given by Robert Deutschmann:
- FSCO 5 Year Review - Strategies for Health Care Providers
- The Power of Advocacy
- Lawyer, Case Manager, Candlestick Maker
Here are further presentations given by Doug O'Toole:
- Capacity to Manage Finances and Strategies when Capacity is Impaired
- The Law of Mental Capacity
Further Resources
FSCO Expert Panel – Proposed CAT Changes
Recommendations for Changes to the Definition of Catastrophic Impairment
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