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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On September 27, 2012, the Ontario Court of Appeal released its landmark decision in Pastore vAviva. 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.
In the recently released Costs decision, Stewart et al. v. Wood et al. [2019 ONSC 3931] Justice Tausenfreund was required to assess costs and disbursements in a settled personal injury lawsuit.
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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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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.
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.
Read More about Accident Benefits Update FSCO- Clarifies CAT Marked Impairment Threshold
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.
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.
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We have begun recommending that our clients consider purchasing legal cost protection from companies like BridgePoint Indemnity Co. We believe that this empowers our clients, and removes one of the obstacles to achieving fair compensation from the defendant insurance companies.
The central issue in the recent Reconsideration of 17-000835 v. Aviva General Insurance Canada (2018 CanLII 83520) was whether chronic pain should be considered a “minor injury” or “clinically associated sequelae” under the Minor Injury Guideline (MIG) and Statutory Accident Benefits Schedule (SABS). While this issue should have been resolved already, Insurance companies continue to use the MIG as justification for denying payment of benefits to chronic pain claimants.
The Applicant, T.S. was injured in a collision on January 16, 2015 and sought treatment through his automobile insurer, Aviva. Based on the report of his initial injuries, his claim was processed under the MIG by Aviva, and was subject to a $3,500 cap on funding.
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