As discussed in our last post, there was immense concern that the transition from FSCO to the Licence Appeal Tribunal (LAT) would lead to inconsistent, poorly adjudicated accident benefits decisions. The transition was perceived as a cost-savings measure and, from the perspective of claimants’ counsel, a decidedly pro-insurer shift procedurally and philosophically.
One of the greatest areas of concern identified by both sides of the personal injury bar with the transition from FSCO to the Licence Appeal Tribunal (LAT) as arbiter of Accident Benefits disputes under the Statutory Accident Benefits Schedule (SABS) of the Insurance Act was the LAT’s ability to address the complex issues driving a Determination of Catastrophic Impairment, or CAT claim. It was feared that the LAT lacked the expertise to adjudicate these claims, which generally involve massive medical briefs and multiple, often contradictory, expert opinions. Because a CAT determination opens the door to greatly enhanced benefits, the stakes...
In Aviva Insurance Company of Canada v. Dittmann, released on March 15, 2018, the Supreme Court of Canada dismissed a leave to appeal application by Aviva and ordered the insurer to pay Ms. Dittmann’s legal costs. Several years earlier, Ms. Dittmann suffered serious burns while attempting to place a drive-through coffee into her cup holder. She applied for accident benefits from Aviva under her automobile insurance policy. Aviva denied the claim because it felt that the injuries were unrelated to her operation of the car. Under the Statutory Accident Benefits Schedule (SABS), an accident is described as, “an incident...
One of the biggest obstacles facing personal injury plaintiffs in the pursuit of their claims is the very real threat of exposure to a large costs award against them if they are not successful in the lawsuit. Typically, a judge will order the unsuccessful party to pay a portion of the victor’s legal costs. The rationale for this is that the unsuccessful party should not have put the other party to the expense of a trial and should have settled the claim. This is fine if the plaintiff is successful. However, it works both ways. If a plaintiff either is...
Concussions are in the news a lot in sports-related injuries- especially hockey and football as high-profile athletes suffer repeated head injuries that can shorten their careers and permanently impact their lives. As a result, more attention and money has been devoted recently to understanding the diagnosis and treatment and long-term effects of concussions. Despite this recent attention, however, concussion and particularly post-concussion syndrome remains a gray area medically. Several misconceptions exist amongst the general population, but also in within the medical and rehabilitative community and the automobile insurance industry.
On September 27, 2012, the Ontario Court of Appeal released its landmark decision in Pastore v Aviva. Mrs. Pastore was successfully represented by Joseph Campisi, the founding partner of Campisi LLP. It was a long and challenging fight over several years and multiple appeals. The stakes were very high for the insurance industry, and Aviva did not want to lose. At issue was the definition of “catastrophic impairment” under the Statutory Accident Benefits Schedule (SABS), and whether Mrs. Pastore qualified for enhanced benefits under that definition. As the difference in benefits entitlement was nearly an additional $2 million, Aviva...
G.P. v. Cumis General Insurance Company, a recent claim before the Licence Appeal Tribunal (LAT), concerned G.P.’s application for a determination of catastrophic impairment and several denied treatment plans. G.P. had been injured in a motor vehicle accident in November 2013. She sought treatment from her automobile insurer, Cumis, under the Statutory Accident Benefits Schedule (SABS). After agreeing to fund her initial treatment, Cumis denied several treatment plans. G.P. commenced an application to dispute the denials with the LAT. Around the same time, she submitted an OCF-19 (“Application for Determination of Catastrophic Impairment” or “CAT application”) prepared by her physician,...
Accident Benefits Updates: LAT Applies Heath Test- Orders Non-Earner Benefits (NEB) for Chronic Pain
When you apply for accident benefits coverage after a car accident, you are required to elect one of: Income Replacement Benefits (IRB), Caregiver Benefits, or Non-Earner Benefits (NEB). Of the three, NEBs have the most challenging criteria to meet. NEBs only kick in after six months AND have the highest threshold: the claimant must sustain an impairment as a result of an accident and suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
Many of you do not know that our legal system is prejudiced against plaintiffs who are injured in car accidents. In response to pressure from the Insurance industry, our Insurance Act has built-in relief for defendant insurance companies from paying damages to plaintiffs. Briefly, damages under a certain amount are subject to an automatic deductible which stays in the defendant insurer’s pocket. So, if a jury awards you $70,000 for pain and suffering, you will only receive $40,000. The jury is not told that this happens.
Mr. Cowdrey was involved in a serious motorcycle accident on September 15, 2013. He was riding alone just after midnight in Innisfil, Ontario when he struck a pothole and was thrown from his motorcycle. He suffered life-threatening injuries including a serious traumatic brain injury and extensive physical injuries including the loss of his left eye. He was airlifted to Sunnybrook Hospital in Toronto and placed in a medically induced coma for 2 weeks. As a result of the severity of his injuries, he was deemed catastrophically impaired pursuant to the Statutory Accident Benefits Schedule (SABS) under the Insurance Act.