Genetic Discrimination Bills in Canada

The Law Times covered the introduction of genetic discrimination bills in the May 15, 2017 issue, Need for genetic discrimination bills questioned.

The article covers both Bill 30 and Bill S-201,

Toronto health lawyer Omar Ha-Redeye says he welcomes the legislation, in the hope it will provide a potential boost to the development of individualized approaches to health care based on a patient’s genetic profile.

“We’re only just beginning to understand the complexity of the human genome, and it’s going to take us a couple of decades for us to fully get there. In the meantime, I would hate to see fallacious assumptions being made about genetic traits,” Ha-Redeye says.

However, the federal bill has raised the hackles of the insurance industry because of extra provisions that contemplate criminal sanctions in the enforcement of the ban on genetic discrimination.

 

Fostering Inclusivity for End of Life Care

Omar Ha-Redeye, Ruby Latif, and Dr. Kashif Pirzada, published a study through the Law Commission of Ontario, Integrating Religious and Cultural Supports into Quality Care in the Last Stages of Life in Ontario.

See a summary of the paper on Slaw.

Taylor and Pembridge Insurance. Arbitration, 2014-06-11, Reg 403/96. FSCO 4218.

Taylor and Pembridge Insurance. Arbitration, 2014-06-11, Reg 403/96. FSCO 4218.

Summary

The Applicant was injured in a motor vehicle accident on September 10, 2009. She applied for and received statutory accident benefits from Pembridge Insurance Company of Canada (“Pembridge”), payable under the Schedule.

The Applicant exhausted medical and rehabilitation benefits under her policy. She then “applied to Pembridge Insurance for a determination that she sustained a catastrophic impairment (“CAT”)” and was denied.

Legal Issue

“Did the Applicant sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Schedule?”

Law

The Schedule defines “impairment” as a loss or abnormality of a psychological, physiological or anatomical structure or function.”

“Under clause 2(1.2)(f) of the Schedule, a catastrophic impairment is an impairment or combination of impairments that, in accordance with the Guides, results in 55 percent or more impairment of the whole person (WPI).”

Under clause 2(1.2)(g) of the Schedule a catastrophic impairment is an impairment that, in accordance with the Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.”

Decision

The Applicant did not sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Schedule.”

I find that Ms. Taylor did not sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Schedule because she does not meet the 55% WPI threshold.”

Analysis/Significance

The significance of this decision lies in the arbitrator being given the ultimate power to rule as a trier of fact and trier of law in coming to a decision regarding the future income of a person with perceived catastrophic injuries.

While the medical experts are called for both sides to establish the level of the Applicant’s permanent injuries, the arbitrator is left to make the decision of which expert opinion he or she will accept. In this case, the arbitrator chose a combination of the expert’s opinions to come to a decision.

Lacey Appleton is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

Case Brief – Awuau v. Intact Insurance Company

Case Brief – Awuau v. Intact Insurance Company

The applicant, Mr. Isaak Awuau was involved in a motor vehicle accident on July 19, 2009. He sustained injuries and submitted a claim to his insurers, Intact Insurance Company (Intact).

A dispute arose between the applicant and Intact concerning his entitlement benefits and Mr. Awuau applied for arbitration at the Financial Services Commission of Ontario (the Commission).

Neither Mr. Awuau nor his representative showed up at the prehearing discussion on March 4, 2014. Arbitration was scheduled for May 9, 2014 at 10 a.m. with the understanding that if the applicant showed up, the matter would be treated as pre-hearing. Again, Mr. Awuau and or his representative failed to show up on this date. A letter dated March 6, 2014 was mailed to him at his last known address advising that under certain rules of the Dispute Resolution Practice Code (the Code) a hearing may be dismissed if the proceeding is deemed to be frivolous, vexatious or commenced in bad faith.

Counsel for Intact moved that the applicant’s Application for Arbitration be dismissed.

The Decision
The Arbitrator dismissed the Application accordingly. Intact was awarded cost in the amount of $850 payable forthwith.

The Law
Rule 68 of the Code provides grounds on which the Adjudicator acted correctly in dismissing the Applicant’s case. Section 68.1 provides that the hearing may be dismissed if the proceeding is deemed to be frivolous, vexatious or commenced in bad faith. Mr. Awuau’s failure to turn up at the hearings may be construed as an application that was brought frivolously before the Commission or commenced as a result of vexation or in bad faith. His failure to proceed with the matter did not put him in good standing.

Section 68.2 requires the adjudicator “to deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.” Mr. Awuau was served the requisite notices including a motion record on by Intact by regular mail on April 16, 2014 advising of its intention have the matter dismissed.

Mr. Awuau failed his obligations under subsection 3 (a) and (b) to “provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

001

Donnahoque (Donald) Palmer v State Farm

Donnahoque (Donald) Palmer v State Farm Mutual Automobile Insurance Company

Facts

  • Donald Palmer was injured in a motor vehicle accident on November 1, 1997. He applied to receive statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”). The Applicant’s claims included: psychological treatment, nerve block injections and cost of a vocational assessment. At the pre-hearing the Applicant also added botox injections and massage treatment to the benefits list. State farm denied these treatments and the issued were brought forth to the arbitration.
  • Before the hearing the parties settled the psychological treatments and vocational assessment issues. The Applicant felt that State Farm should have paid for these services when his treating psychologist recommended them in January 2000 and was thus seeking special awards.
  • Costs for nerve block injections, proposed botox injections and massage treatments as well as special awards were outstanding and sought after by the Applicant.

Issues

  • Is the Applicant entitled to the cost associated with outstanding cost of nerve block injections, botox injections and massage treatments?
  • Is State Farm liable to pay a special award pursuant to subsection 282(10) of the Insurance Act on the basis that it unreasonably withheld or delayed benefit payments for psychological treatment and vocational assessment?
  • Are the parties entitled to their respected arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

Rule

  • Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8
  • Subsection 282(10) of the Insurance Act deals with “special awards” sought by the Plaintiff:

282.(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

  • Based on the oral testimonies and medical testimonies of physicians State Farm was found liable and ordered to pay $1,170 (50 percent of $2,340) together with interest calculated as per subsection 282(10) of the Insurance Act

Analysis

  • The Applicant was, without a doubt, seriously injured in a head collision on November 1, 1997. The Applicant’s testimony was accepted, he had suffered a fractured sternum and left shoulder and an injury to his left knee, chronic pain in various parts of his body (particularly head, neck, chest, left arm and knee, upper back).
  • Nerve block injections were administered to address particularly his head, neck and shoulder pain. Botox injections and massage were recommended for pain in the same areas.
  • The Plaintiff had to deal with psychological problems which resulted in secondary anxiety and depression.

Conclusion

  • State Farm was ordered to pay $800 fee for the five sessions of nerve block injections with interest.
  • The Applicant was not entitled to the cost of either botox or massage treatments.
  • State Farm was liable to pay a special award of $1,170 together with interest calculated pursuant to subsection 282(10) of the Insurance Act.

 Significance

  • The significance of the Insurance Act subsection 282(10) allows for those seeking benefits from the Auto Insurance Company to be protected from harm caused by the delay or withhold of payment. When further harm is caused special benefits are awarded in addition to the original ones issued.
Kate Lucoff is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

STACEY TAYLOR v. PEMBRIDGE INSURANCE COMPANY OF CANADA FSCO A12-004886 June 11 2014

Facts

Ms. Stacey Taylor was injured in a motor accident in on September 10, 2009. After the accident, she applied for statutory accident benefits from Pembridge Insurance Company of Canada, and she received this benefits, but after she exhausted all the medical and rehabilitation benefits available under her automobile insurance policy she applied for a determination that she sustained a catastrophic impairment. The insurance company denied her application and considered that she did not suffer a catastrophic impairment as a result of this accident.

Issue:

The issue is whether or not, the Applicant, Stacey Taylor, sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Ontario Statutory Accident Benefits Schedule (SABS).

Analysis:

  • Ms. Taylor testified that at the time of the accident she was working for Parks Canada as an archaeologist and that her job involved looking for sites, hiking, clearing trails, clearing areas for infrastructure, artifact analysis, report writing, and site reports. She described how was her life before the accident, and how much her day to day life was change since the accident, and how the accident affect her abilities to work and to develop a normal family life with her common law partner due to the rehabilitation process, the continuous pain, and the psychological consequences of the accident, as anxiety, difficulty to sleep and short-term memory issues which causes a lot of frustration and depression on her. The Arbitrator accepted all this declaration.
  •  In this case, the expert opinions are important to determine if there is an actual catastrophic impairment, due to that, the Commission received the opinion from various Doctors who treated and evaluated Ms. Taylor.
  •  The arbitrator remark that the burden of proof rests with Ms. Taylor, and that she must prove on the balance of probabilities that, as a result of the accident, she sustained a catastrophic impairment.
  • The arbitrator also stated that the determination of catastrophic impairment is ultimately an adjudicative, not a medical determination and that the role of the assessor is to provide a clinical opinion as to the level of an individual’s impairment.
  •  The decision maker use the expert opinion of Dr. Harold Becker, who is a medical doctor and the Medical Director of Omega Medical Associates. He was qualified as an expert in the use of the AMA Guides to the Evaluation of Permanent Impairment. Dr. Harold Becker testified as to the use of the Guides and his combination of the impairment ratings in Ms. Taylor`s case. He provided evidence as to the proper method of determining and scoring particular impairments as part of the process of establishing impairment ratings. He oversaw the work of Dr. Lisa Becker and Dr. Jeremy Frank. He concluded that when physical impairments and mental and behavioural impairments are combined, Ms. Taylor rated 31-60% Whole Person Impairment (“WPI”).
  • This means that this range has a dual meaning, one part of the range (37 to 54% WPI) means that Ms. Taylor does not meet the catastrophic threshold for physical impairments, and the other part (55 to 62% WPI), means that Ms. Taylor meets or exceeds the catastrophic threshold.
  •  For the arbitrator there is not a final answer about if Ms. Taylor meet the 55% WPI threshold for physical impairments under the Ontario Statutory Accident Benefits Schedule and the evidence supports different findings on this critical issue, and it is evenly weighted. In the absence of any other evidence, the arbitrator considered that the issue must be determined in a manner that favours Pembridge.
  •  When the physical impairment rating of 26% is combined with the mental and behavioural impairment rating of 11%, this results in a WPI of 34%. 34%, rounded to the nearest value ending in 0 or 5, as permitted by the Guides, yields 35%, which is insufficient to meet the criteria of the Ontario Statutory Accident Benefits Schedule.

Decision
Based on the evidence, the arbitrator conclude that Ms. Taylor did not sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Ontario Statutory Accident Benefits Schedule.

Carlos Vera is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

Catastrophic Impairment, what do you need to know and what is new

 

Catastrophic impairment is a “hot topic”, to say the less, in the field of the accidents benefits and insurance companies. But, why is so important? Why is so polemic? We can resume to one main point, the money involve.

When a person is seeking to receive a benefit from an insurance company, being classified under the category of “catastrophic impairment” could represent a big difference in the amount of money that the person can receive from the insurance company.

 

Where we can find the definition of catastrophic impairment?

In Ontario, the Statutory Accident Benefits Schedule (SABS), define in his clauses 2(1.2)(f) and (g) what we can consider as a catastrophic impairment. Basically, the law define it as follow:

 

For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

  1. paraplegia or quadriplegia;
  2. the amputation or other impairment causing the total and permanent loss of use of an arm or a leg;
  3. the total loss of vision in both eyes;
  4. subject to subsection (4), brain impairment that, in respect of an accident, results in,
    1. a score of 9 or less on the Glasgow Coma Scale as published in Jennett, B. and Teasdale, G.,Management of Head Injuries, Contemporary Neurology  Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or
    2. a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;
  5. subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or
  6. subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioral disorder.

 

What about case law?

Being a main issue in the field of the accident benefits, is reasonable that exists a lot of case law related with what we can consider and we cannot consider as catastrophic impairment. We can mentioned two recent important cases related with the catastrophic impairment definition

  • Aviva and Pastore (2012 ONCA 642) : in this case, the Ontario Court of Appeal stated that is enough be markedly impaired in one of the four of her activities of daily living , social functioning, concentration and deterioration on the job, to the person be considered under the category of catastrophic impair and ask for a higher compensation.
  • Kusnierz v. The Economical Mutual Insurance  (2010 ONSC 5749): in this case,Ontario Court of Appeal found that is possible combine psychological and physical impairments to reach the “minimum” percentage required to be consider as a case of catastrophic impairment.

 

What is new?

Recently, on June 12, 2012, the Ministry of Finance released the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, which is the new project related with catastrophic impairment, the purpose is to ensure that the most seriously injured accident victims are treated fairly.

The government directed consult with the medical community to amend the definition of catastrophic impairment as set out in the Statutory Accident Benefits Schedule, and to set out which need to be the qualifications and general requirements for health professionals who conduct catastrophic impairment evaluations.

 

What is next?

The definition of catastrophic impairment still will be a hot topic in the near future because involves economic issues and have a great impact in the insurance companies, who pressure  the Ontario government to define and clarify the extent and limits of this concept, because certainty about this is important to both sides, companies and insured people. Is just a matter of time to see what direction is going to take this definition and how is going to impact the insurance industry.

Carlos Vera is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.