Landre and Western Assurance Company Case Summary
Ontario Trial Lawyers Association Blog Case Summary – May 5 2017, written by Michael Ettedgui
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Accident Benefits Update: Chronic Pain Is Not a Minor Injury
In F.H. and Certas Direct Insurance Company, a recent hearing before the Licence Appeal Tribunal (LAT), the unnamed Applicant sought a declaration that her ongoing post-accident impairments were not subject to the Minor Injury Guideline (MIG) and the $3500 cap on treatment under the MIG.
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G.P.’s Application For Catastrophic Impairment And Denied Treatment Plans
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, Dr. Marciniak, who stated the opinion that she suffered from an impairment or combination of impairments that resulted in 55 per cent or more impairment of the whole person (WPI) and therefore met the test for catastrophic impairment under the SABS.
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Accident Benefits Update: LAT Approves Attendant Care Despite Lawyer’s Return to Work
On March 20, 2020, the Licence Appeal Tribunal (LAT) released its decision in J.W. v. Security National Insurance Company (2020 CanLII 30385). The central question in this decision concerned a catastrophically injured (catastrophic) applicant’s entitlement to Attendant Care (AC) benefits, and the quantum of those benefits if found reasonable and necessary. The applicant, J.W. had been seriously injured in a motor vehicle accident on October 20, 2014 while riding a motorized scooter. He sustained a traumatic brain injury (TBI) and multiple orthopedic and other injuries. Security National, his accident benefits insurer, accepted that he was catastrophic.
ACCIDENT BENEFITS UPDATE- LAT CONSIDERS CAUSATION IN CAT CLAIM
In F.D. and Allstate Canada, a recent decision of the Licence Appeal Tribunal (LAT) before Adjudicator Daoud, causation was again a central issue in a claim for determination of catastrophic impairment (catastrophic). The claimant, F.D. had been rear-ended on August 6, 2014. She suffered extensive soft-tissue injuries, with post-concussion symptoms, anxiety and depression. She sought treatment for ongoing pain and functional limitations, as well as increasing cognitive dysfunction and psychological impairment. Her insurer, Allstate, paid her accident benefits claims up to the non-catastrophic limits then denied further funding. Mediation failed to resolve the issue between the parties, which led to the present hearing.
At the hearing, the sole issue was whether F.D. had suffered a catastrophic impairment from a Mental and Behavioral Disorder (MBD) as a result of the collision. A catastrophic determination would entitle her to enhanced benefits under the Statutory Accident Benefits Schedule (SABS).
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Accident Benefits Update – Unica Loses Cat Fight Over AC and Housing Modifications
Malitskiy v. Unica Insurance Inc. (18-010164/AABS) a Licence Appeal Tribunal (LAT) decision released January 2, 2020, involved a dispute over entitlement to attendant care benefits and home modifications by the catastrophically impaired (catastrophic) applicant, Sergey Malitskiy.
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Accident Benefits Update: Insurers Still Refuse to Fund CAT Assessments
An ongoing source of frustration for seriously injured car accident victims concerns the refusal by their accident benefits insurers to fund assessments for a determination of Catastrophic Impairment (catastrophic). The Statutory Accident Benefits Schedule (SABS) sets out the obligations on insurers to pay for assessments. Typically, assessments that relate to a benefit or payment are funded out of the rehabilitation and treatment limits under the policy- either $50,000 (or $3,500 if a claimant has been categorized under the Minor Injury Guideline (MIG)). This is set out in s. 14, 15 and 18 of the SABS. However, s. 25 of the SABS specifically requires an insurer to pay reasonable fees charged for preparing an application for determination of catastrophic impairment under s.45, including any assessment or examination necessary for that purpose.
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Bad Faith by Accident Benefits Insurer?
On July 19, 2019, the Ontario Court of Appeal released Stegenga v Economical Mutual Insurance Company 201 ONCA 615). The central question on appeal concerned the jurisdiction of the Licence Appeal Tribunal to hear a bad faith claim against Economical for its handling of the plaintiff, Morgan Stegenga’s accident benefits claim under the Statutory Accident Benefits Schedule [SABS] in light of the 2016 amendments to the SABS.
ACCIDENT BENEFITS UPDATE
The Licence Appeal Tribunal (LAT) recently released its decision in HW and Security National Insurance Company(17-005314/AABS). The central issue in the hearing was whether the Applicant, VHW had suffered a catastrophic impairment (catastrophic) from her July 14, 2010 rear-end collision.
Accident Benefits Updates: Claimant’s Refusal to Attend “Unreasonable” CAT Assessment Upheld
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, Dr. Marciniak, who stated the opinion that she suffered from an impairment or combination of impairments that resulted in 55 per cent or more impairment of the whole person (WPI) and therefore met the test for catastrophic impairment under the SABS.