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
|
|
| Release Date |
Title |
| May 15, 2012 |
| Insufficent evidence to prove that insured was catastrophically impaired. |
| Stewart v. State Farm – CATASTROPHIC IMPAIRMENT DETERMINATION; summary judgment motion by insured; onus on insured to show she met the definition for Catastrophic impairment; inadequate notice from insurer did not nullify insured’s onus to prove her claim; insured’s evidence at summary judgment motion failed to meet the “full appreciation” test; expert evidence critical in determining Catastrophic Impairment. |
|
| May 11, 2012 |
| Overall marked impairment in functionality given 40% impairment rating |
| Huang and Primmum Insurance – CATASTROPHIC IMPAIRMENT DESIGNATION; compression fracture and severe major depressive disorder and post-traumatic stress disorder; marked impairment in one aspect of functional ability; issue whether overall functionality marked or moderate impairment; significant impairment of function in all areas; lack of capacity due in part to motivation issues and depression-related fatigue; impairment related to mental or behavioural disorders as well as physical injuries; 40% rating given for mental and behavioural disorder. |
|
| May 05, 2012 |
| Insured's witnesses credible and insurer medical reports given little weight. |
| Federico and State Farm Mutual – INCOME REPLACEMENT BENEFITS and other benefits; hearing started before New Accident Benefit regulations so they do not apply retroactively to interfere with vested rights; case rested on credibility and insured witnesses found to be credible; accident involved $1,000 in damage; insured returned to modified work as plumber after 4 weeks; significant pre car accident medical history; WAD II injuries; substantial inability to perform essential duties of plumber; insurer medical expert reports given little weight; plumber for 28 years and cannot engage in suitable employment based on education, training and experience; credibility of insured and questionable insurer examinations resulted in approval for physiotherapy, housekeeping; MRI denied and subsequently funded by OHIP but insurer required to pay for reasonable and necessary procedure. |
|
| May 05, 2012 |
| Owner failed to show that insured/driver did not have permission to drive car therefore no exclusion. |
| R.P. and Intact Insurance – ENTITLEMENT TO BENEFITS; driving car with owner’s consent; exclusion of non-earner benefits; onus on insurer to prove that driver knew did not have consent; insured/driver has no memory of accident; arbitrator needs to discern state of mind from surrounding circumstances; witness evidence confirmed predominate use of car by insured/driver; owner’s evidence was that insured/driver did not have permission; evidence of owner of vehicle significantly contrasted with evidence of other witnesses; credibility of owner brought into question; witnesses noted that insured/driver drove subject car frequently; hearsay admissible in arbitration hearing; there is evidence that insured/driver had permission to drive the car; evidence of constant use could indicate that insured/driver had reasonable belief that he had consent; no evidence of owner directly speaking to insured/driver about driving car |
|
| May 05, 2012 |
| Insured not credible and medical and employment file do not support insured's position. |
| Mr. Y. and State Farm Mutual – INCOME REPLACEMENT BENEFITS and funding for examinations; decision entirely fact driven; insured’s evidence did not appear reliable and given little weight; surveillance did not detract from insured’s claim; some medical assessments contradicted by insured’s actual functionality; pre car accident pain complaints did not merit the same investigation as post car accident; arbitrator found inability to engage in suitable employment for a short period based on medical report relied upon by arbitrator and employment records; funding for medical examinations not shown to be reasonable or necessary; some reports seen as duplicative. |
|
| Apr 30, 2012 |
| Incurred costs for attendant care to be calculated in accordance with Form 1. |
| Sicoe and Jevco Insurance – HOURLY RATE FOR ATTENDANT CARE; insured is catastrophically impaired and living in Romania; requires around clock attendant care; minimum wage rate in Romania is $1.30 per hour; insurer argues that “incurred” is actual cost; insurer’s interpretation of “incurred” too narrow and not consistent with the broad, remedial and purposive interpretation of the term; legislature attempting to remove uncertainty in calculation of attendant care costs; costs clearly to be calculated in accordance with Form 1; Guidelines specifically provide that insurer may pay above maximum rates but does not say that insurers may pay less. |
|
|
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
|
