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ACCIDENT BENEFITS UPDATE: INSURER CAN’T RELY ON PRIOR MIG REPORT

Campisi Law on March 20, 2020

In Applicant v. Aviva Insurance Canada (2018 CanLII 110921), a recent Licence Appeal Tribunal (LAT) decision, the applicant was struck by another car while making a left hand turn on June 30, 2016.  Within two days of the accident, he reported back and left leg pain and began receiving physiotherapy. His employer provided accommodation for his injuries that allowed him to continue working.  He received accident benefits coverage from his insurer, Aviva subject to the $3500 cap under the Minor Injury Guideline (MIG). Subsequent treatment plans for physiotherapy, chiropractic and massage were denied and the applicant commenced a LAT proceeding to challenge the MIG designation and seek payment of the disputed plans.

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Accident Benefits Update: Legal System Is Prejudiced Against Plaintiffs

Campisi Law on March 20, 2020

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.

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Accident Benefits Updates: Egg Incident

Campisi Law on March 20, 2020

In Gilbraith v. Intact Insurance Company (2019 ONSC 1875), Intact brought a Summary Judgment Motion to dismiss Ms. Gilbraith’s claim.  She had been seriously injured following an unusual chain of events that she claimed was an “accident” as defined in the Insurance Act.  On April 11, 2014 she and a friend were walking when she was struck in the eye by an egg, thrown from a passing carwhich fled the scene.  As a result, Ms. Gilbraith lost central vision in her right eye.

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Accident Benefits Update: LAT Approves Attendant Care Despite Lawyer’s Return to Work

Campisi Law on March 20, 2020

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.

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Accident Benefits Update: CAT

Campisi Law on March 20, 2020

In E.E. and Aviva Insurance Company, a recent decision of the Licence Appeal Tribunal (LAT), the Applicant, E.E. claimed that he had suffered Catastrophic (CAT) Impairment under the Statutory Accident Benefits Schedule (SABS) following a serious single vehicle collision on January 28, 2012 in which he was a passenger.  His initial complaints included neck and back pain with loss of sensation in his right arm. No neurological defects were noted at the hospital. His condition deteriorated over time, and he required several emergency room visits culminating in significant spinal surgery. He continued to suffer from spasticity in his extremities with severely altered gait and very limited use of his dominant right hand, as well as ongoing psychological impairments.  

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New Deductible 2019

Campisi Law on March 20, 2020

Many of you are unaware that there is a statutory deductible imposed on non-pecuniary general (pain and suffering) damages below a certain monetary threshold. Prior to August 2015, the defendant insurance company was entitled to deduct $30,000 from an award for pain and suffering under $100,000 (Family Law Act (FLA) claimants faced a $50,000 threshold with a $15,000 deductible). This meant that a plaintiff would receive no compensation despite a jury award of $30,000 or less at trial. This obviously unfair practice was designed to discourage lawsuits in what were perceived as less serious cases. The “no-fault” accident benefit system was presented as a reasonable exchange for this loss.

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Putting Drivers First? The Government’s Blueprint for Insurance Reform Revealed

Campisi Law on March 20, 2020

Early this year, the government asked for public input into the future of auto insurance in Ontario.  We were cautiously optimistic that they wanted genuine participation from the people most affected by any reforms.  However, now that the “Blueprint” has been published as part of the 2019 Budget, it is clear the Liberals have little interest in putting drivers first.

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