$15,700,000 Awarded
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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 UPDATE: FSCO MISSES THE POINT OF MIG APPEAL
In Aviva Canada Inc. v. Sleep(FSCO Appeal P17-00034), Director’s Delegate Murray was required to review an arbitration decision concerning the Minor Injury Guideline (MIG) of the Statutory Accident Benefits Schedule (SABS). In the decision, Arbitrator Anschell found that the Respondent, Mr. Sleep had sustained injuries from a March 26, 2014 collision that exceeded the definition of “Minor Injury” under the MIG.
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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.
An Overview On Threshold And Its Importance
One of the trade-offs the insurance industry negotiated before it accepted the “no-fault” accident benefits scheme was a limitation on accident victims’ right to sue for pain and suffering and health care damages. In order to succeed as a plaintiff, you must prove on the balance of probabilities (“more likely than not”) that you have suffered a permanent, serious impairment of an important physical, mental or psychological function. Less often, you can demonstrate a permanent serious disfigurement. This limitation is known as the “threshold” and is used routinely by insurance defence lawyers to pressure plaintiffs, and particularly those of you suffering from chronic pain conditions or mild traumatic brain injuries, into settling for less than your cases are worth. They will claim that there is no objective evidence that you meet the threshold. As a result, a judge will not allow any award for pain and suffering or health care at trial. And, they will claim, you will end up with nothing or even owing the defendant money for legal costs.
Accident Benefits Updates: Spilled Coffee Incident
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.
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Accident Benefits Updates- More Encouraging Signs from the LAT
As we have discussed at length in recent posts, initial concerns regarding the competence of the Licence Appeal Tribunal (LAT) may have been somewhat overstated. This is not to say that accident victims are uniformly receiving appropriate adjudication at the LAT, as many decisions have come under fire for “cookie-cutter” responses and other failures. However, as the recent Reconsideration of 16-002325 v Aviva Insurance Canadashows, when such failures do occur, there is hope that a correct result can still be achieved.
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Accident Benefits Update- LAT Considers CAT Based On Glasgow Coma Scale
A designation of catastrophic impairment (CAT) following a car accident provides an injury victim with access to greatly enhanced medical, rehabilitative and other benefits under the Statutory Accident Benefits Schedule (SABS). There are several categories of impairment that qualify immediately as catastrophic, including a Glasgow Coma Scale (GCS) score of 9 or lower.
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Accident Benefits Update FSCO- Clarifies CAT Marked Impairment Threshold
In O’Brien v State Farm Mutual Automobile Insurance Company, a recent FSCO arbitration decision, the Applicant, Erik O’Brien was seriously injured in a car accident on August 21, 2008. Despite extensive rehabilitation, he continued to suffer from Chronic Pain Syndrome with related depression and fatigue issue. To support his family, he returned to work on modified duties 6 months after the accident, and full-time after that. However, he was unable to continue working approximately 2 years after his return to work.
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Prejudicial Impact Of LAT On MVI Victims
The Licence Appeal Tribunal (LAT), and its prejudicial impact on the health and well-being of motor vehicle injury victims across Ontario, is now firmly entrenched.