Personal Injury Blog

Accident Victims: Get Your Own Medical Opinion

Updated October 3, 2023

Navigating the insurance claims process, including the Statutory Benefits Accident Schedule (SABS) challenges anyone outside the legal system. But recently there was a landmark decision worth revisiting because of the opportunity it represents for claimants who have suffered from catastrophic injuries that are being disputed by their insurance companies.

The case highlights why legal representation helps ensure that accident victims get the benefits they deserve. In this case it underscores the importance of accident victims obtaining their own medical opinions separate from the insurance company.

The case is J.M. and Aviva General Insurance (2019 CanLII 51309). J.M. was injured in a car accident in August 2015 and received accident benefits from her insurer, Aviva. The main issue was a treatment plan costing $21,513.35, which included a series of assessments requested by J.M. to determine catastrophic impairment. At the time of the dispute, she had already used up the $50,000 limit for non-catastrophic medical and rehabilitation benefits as per the Statutory Benefits Accident Schedule (SABS) in effect at that time.

 

The original LAT hearing focused on several issues, including 

  1. whether the cost of catastrophic assessments should be considered within the non-catastrophic limits, 
  2. the reasonableness and necessity of the proposed assessments, and 
  3. whether the cost of these assessments violated the SABS.

 

Several provisions within the SABS were relevant to the dispute:

 

  • Section 18(3) set the $50,000 limit for Med/rehab benefits and included the cost of assessments for these benefits.
  • Section 25(1)(5) required the insurer to pay reasonable fees for preparing an application for a catastrophic determination under s.45, which could involve assessments or examinations.
  • Section 45 outlined the process for determining catastrophic impairment and included the possibility of medical examinations as part of the process.

 

Aviva argued that catastrophic assessments should be covered within the $50,000 limits defined in s.18, effectively leaving no available funding for J.M.'s requested assessments. Aviva indicated that if J.M. succeeded in obtaining a catastrophic determination, they would reconsider funding the treatment plan.

Adjudicator Grant rejected Aviva's arguments. He pointed out that s.18(5) referred to assessments "in connection with any benefit or payment to or for an insured person," and he interpreted this as excluding assessments not directly related to specified benefits or payments. According to a decision from the Ontario Court of Appeal (Machaj), a claim for catastrophic determination did not qualify as a claim for benefits or payments. Funding for catastrophic determinations was governed by s.25, which explicitly stated that the insurer "shall pay" reasonable fees for making the determination, including any necessary assessments.

Aviva also contended that the proposed catastrophic assessments were unnecessary because there was already sufficient medical information to make the determination based on assessments they had conducted throughout the claim, including Orthopedic and Psychiatric reports.

Adjudicator Grant disagreed on two grounds. First, he argued that J.M. had experienced various post-accident impairments that could potentially lead to a catastrophic determination under specific categories, requiring multidisciplinary assessments. Second, he emphasized that the SABS aimed to protect consumers, allowing both the insurer and the insured to reasonably assess the disputed accident-related impairments. Aviva had already conducted assessments they deemed reasonable and necessary in denying the catastrophic application. Adjudicator Grant believed that J.M. should be given the opportunity to obtain a medical opinion from experts of her choosing.

Consequently, Adjudicator Grant ordered Aviva to fund the treatment plan, except for a $2,000 claim for "file review," which was considered duplicative for each of the proposed assessments.

Aviva sought a reconsideration of the decision, claiming that Adjudicator Grant had made legal errors by concluding that catastrophic assessments were not subject to the $50,000 non-catastrophic limits in s.18 of the SABS and that payment for these assessments was obligatory in certain situations.

Vice-Chair Flude reviewed the decision and determined that no significant legal errors had occurred. He concurred with Adjudicator Grant. In his reconsideration, Vice-Chair Flude asked whether the SABS imposed an obligation to pay for catastrophic assessments and if it limited the insurer's payment amount in any way.

Section 25 clearly established an obligation for insurers to cover expenses, including assessments when necessary, without mentioning the monetary limits in s.18. It only applied reasonable fees and a cap of $2,000 per assessment.

Turning to s.18, while it set monetary limits, it did not include funding for determining entitlement to enhanced benefits for catastrophically impaired claimants within its scope. Adjudicator Grant correctly interpreted this determination as not being "in connection to" a specified benefit or payment. Furthermore, a claimant might be deemed catastrophic without demonstrating that subsequent treatment plans for benefits or payments were reasonable and necessary.

Aviva argued that both sections should be considered together, pointing out that Attendant Care assessments were mentioned in s.25, yet they fell under the $50,000 limits. Aviva concluded that the absence of catastrophic assessments in s.18 did not determine their status.

Vice-Chair Flude dismissed this argument. First, Attendant Care was a specified benefit or payment under the SABS. Second, interpreting s.18 as Aviva suggested would force seriously injured claimants, who might eventually be deemed catastrophic, to reserve a significant portion of their allotted med/rehab benefits (in this case, 42%) for potential catastrophic assessments instead of using the funds for treatment. This would have a devastating impact on potential recovery, which contradicted the purpose of the SABS.

Consequently, Vice-Chair Flude upheld the original decision, further validating the importance of having an experienced personal injury lawyer to represent your rights when facing insurance companies, who have an interest in minimizing the value of the insurance payouts to accident victims.

If you have been seriously injured in a car accident and have questions about catastrophic impairment, your entitlement to benefits or assessments, or your claim generally, we are pleased to offer a free consultation. Campisi LLP – Champions with Heart.

 

Adam Kuciej
About Adam Kuciej
Adam is a Campisi personal injury lawyer who's sole focus is fighting to protect client's future and peace of mind. Ever since he started out in criminal law with a distinguished lawyer in New Brunswick, he knew he wanted to fight for the little guy. And when he came to Toronto, he found his calling in personal injury law. He practices exclusively in personal injury, long and short term disability, car accident and negligence law, representing clients successfully in the Provincial Court, Superior Court, Divisional Court, and Licence Appeal Tribunal. He has argued cases at all levels in Ontario and has completed applications for leave to appeal to the Supreme Court of Canada.

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