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 |
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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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| Sep 03, 2012 |
| Medical marijuana considered reasonable and necessary for insured's pain condition. |
| Ms. T.N. and Personal Insurance – LIMITATION AND ENTITLEMENT TO BENEFITS; insured catastrophically impaired in accident suffering a severe brain injury; Income replacement benefits - insured’s denial failed to set out the sequence of steps in the dispute resolution process in a clear and straightforward manner, and in a way that would make sense to an unsophisticated person; no evidence to the effect that insured understood the various steps in the dispute resolution process; Insurer bears the onus of establishing that it has issued a clear and unequivocal refusal of benefits; insured’s capacity to understand was not considered; employee or self-employed - insured dealt with day to day affairs of company but control of business in other hands, therefore insured considered an employee; Attendant Care Benefits - Insurer was well aware of the issue of attendant care benefits from early on in the process, and in fact anticipated the possibility that insured might seek to claim such benefits retroactively; no prejudice to the Insurer from having received the formal application for attendant care benefits much later in the claim; Housekeeping – establish whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident; involves a comparison of what the insured did before the accident and what he could d |
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| Sep 02, 2012 |
| Insured able to show need for interim attendant care benefits. |
| Ms. T.N. and Personal Insurance – INTERIM ATTENDANT CARE BENEFITS; insured catastrophically impaired in accident suffering a severe brain injury; insured must show need and urgency for interim benefits; insured must produce evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement; insurer required attendant care to minimize the impact of her post-accident impairments; attendant care of 24 hours per day, seven days per week a reasonable and necessary response to the impairments insured sustained in the motor vehicle accident; insured was treated with several medications to manage her post-accident pain and personality change; insured sustained significant physical, cognitive, psychological, emotional, behavioural and sensory impairments and required attendant care 24 hours per day to ameliorate the effects of those impairments; insured demonstrated financial need ; many competing demands for insured’s financial resources so the Arbitrator ordered payment to insured’s lawyer in trust; the arbitrator disagreed with insurer’s position that it could deduct chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker treatment from any award of attendant care benefits |
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| Sep 01, 2012 |
| Evidence from insured and treatment providers' notes did not show treatment as reasonable and necessary. |
| Chung and Intact Insurance – Entitlement to benefits – housekeeping, medical benefits, attendant care and cost of examinations; questions whether number and cost of examinations were abusive; insured and daughter injured in car accident in August 2008 and insurer had received 41 OCF-22s and paid around $121,000 for assessment costs for both; serious accident but insured made good recovery and ongoing injuries considered minor by arbitrator; there are many discrepancies between what was billed for assessments and what actually took place; little evidentiary value given to accounts of treatment providers and their various assessors; corroborating evidence required; in the absence of any such credible evidence the examination expenses have not been shown to be either reasonable or necessary; discrepancies between services billed and those actually provided by the various service providers; insured’s evidence and documentary evidence from treatment providers too vague to satisfy test that proposed treatment was reasonable and necessary |
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| Sep 01, 2012 |
| Documents from third party not necessary for fair and just hearing. |
| Anthonipillai and Security National/Monnex Insurance – PRODUCTION OF DOCUMENTS at arbitration; daughter provided housekeeping and caregiver services to insured; insurer wanted daughter to produce academic schedule from university for the relevant time period; is document required for a fair and just hearing; insured made several requests to daughter for copy of schedule but schedule not produced; arbitrator not convinced that schedule required for a fair and just hearing; arbitrator also questioned probative value of schedule as it does not disclose attendance. |
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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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