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,
- paraplegia or quadriplegia;
- the amputation or other impairment causing the total and permanent loss of use of an arm or a leg;
- the total loss of vision in both eyes;
- subject to subsection (4), brain impairment that, in respect of an accident, results in,
- 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
- 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;
- 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
- 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.
Marie Melanie Armand-Marius (Applicant) and Wawanesa Mutual Insurance Company (Insurer) Arbitration, Final Decision, FSCO 4217
Marie Melanie Armand-Marius (Applicant) and Wawanesa Mutual Insurance Company (Insurer) Arbitration, Final Decision, FSCO 4217
Decision Date: June 26, 2014
Adjudicator: Rosemary Muzzi
• The Applicant was involved in a motor vehicle accident on March 25, 2010
• The Applicant applied for arbitration after mediation was unsuccessful
• The Applicant appeared for the pre-hearing but did not appear for the hearing (or her counsel) after being notified of the date, time and place
• The Applicant’s counsel made multiple attempts to contact her and did not receive a response
• Counsel was given permission to withdraw
• Wawanesa seeking disbursements for in the total amount of $6,193.14
Applicant was allegedly injured in a motor vehicle accident March 25, 2010 and applied for accident benefits from Wawanesa. Wawanesa refused to payout some of the benefits and Mrs. Armand-Marius applied for arbitration after mediation was unsuccessful. Mrs. Armand-Marius appeared at the pre-hearing but was absent from the scheduled hearing. Should the application for arbitration be dismissed and should Wawanesa be awarded expenses?
Under Section 282 of the Insurance Act, R.S.O. 1990, c.I.8, the application for arbitration was dismissed and Mrs. Armand-Marius ordered to pay Wawanesa expenses to the amount of $1528.67.
Reason and Analysis
The reasons for this decision are simple. The Applicant failed to appear to the scheduled arbitration hearing after applying for the arbitration herself following the failed mediation. Multiple attempts were made by both the FSCO and her own counsel. The costs associated with preparation for arbitration and the time taken to travel to the arbitration is extensive. While Wawanesa was not awarded anywhere close to what they were claiming, but the awarded amount seems fair to cover some costs. It is also important to note that hopefully this decision will provide a deterrent for applicants in the future to not waste court time and money after filing an application for arbitration.
DECISION ON EXPENSES
Abdi Malin V. State farm Mutual Automobile Insurance Company( FSCO A12-000108, July 4, 2014)
By Arbitrator: Edward Lee
In furtherance of applicant’s (Abdi Malin) claim for accident benefits, pre- hearing was scheduled on September 10, 2013. Both the parties were present on that day and next pre- hearing was fixed for December 6, 2013. Adjudicator approved the motion filled by Mr. Malin’s former counsel to withdraw as representative on December 6, 2013. Adjudicator wrote a letter to the applicant about the new scheduled hearing on March 21, 2014 but the applicant did not respond and attend the hearing. Moreover, he failed to submit the documents. Hence, adjudicator dismissed his claim for accident benefits.
- Whether or not the applicant is entitled for accident benefits?
- Whether or not the insurer is entitled to their expenses incurred on arbitration hearing? If “yes”, then how much they are entitled to receive?
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Alfons Ranxburgaj and State Farm Mutual Automobile Insurance Company (FSCO A12-001880 , July 3, 2014)
- Issue 1 –
In the present case, three pre- hearing were held and State Farm appeared before the court in all hearings scheduled but applicant failed to attend the last two. Moreover, applicant failed to provide evidence and submissions in respect of claim in the 30 days period provided by the Arbitrator. Arbitrator considered the Alfons Ranxburgaj and State Farm Mutual Automobile Insurance Company (FSCO A12-001880, July 3, 2014) where, applicant and his counsel were not present at hearing nor provided any documents in support of accident benefit claim and the claim was dismissed by arbitrator in the end. Therefore, in present case too, arbitrator dismissed the applicant’s claim for statutory accident benefits under The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Issue 2-
State farm was present at all hearings and also provided necessary documents within the period given by the arbitrator. Similarly, facts in the present case are similar to Alfons Ranxburgaj and State Farm Mutual Automobile Insurance Company, in which expenses were granted in favour of insurer. Hence,State Farm is entitled to receive expenses in regard of the time and cost spent in preparation of documents in the arbitration hearing.
Applicants claim for accident benefits dismissed and State farm is entitled to receive expense of $1,750.00.[i]
[i]Financial Services Commission Ontario; online: <https://www5.fsco.gov.on.ca/ad>
Occupational Health and Safety Act: An Introduction
A Workplace’s health and safety is governed by the Occupational Health and Safety Act, R.S.O. 1990 c.O.1 and several regulations. The employers are required to post a copy of this act at their workplace. This act outlines the different safety procedures to be followed in each industry such as mining, construction. However, s. 3 (2), (3) specifies the unregulated areas consisting of farming operations, teachers, and self-employed individuals. Additionally, the decisions regarding workplace health and safety are dependent upon determining the duties of each party involved and the extent of these duties. This act also addresses the safety hazards associated with toxic substances and operating machinery in the workplace. The safety hazards involved are briefly listed as follows:
1) Contacting moving parts leading to Muscleskeleton Disorder. Briefly, s 28 (2) of the act specifies the duties of the employees such as, reporting any hazard or defect in the equipment.
2) Contact with fire, electricity, and heat may lead to harmful radiation.
3) Contact with pressurized gasses and liquids expose health hazards for example, harmful chemicals.
Workplaces in Ontario require at least one health and safety representative in each non-managerial position for every or more employees, requiring him/her to conduct physical inspection at least once a month, and anytime a workplace accident occurs. However, this act mentions summary reports containing important information, such as the number of work, accidental fatalities, number of lost work day cases, non-fatal cases requiring medical aid, and the number of occupational illness cases, can be obtained from Workplace Safety and the Insurance Board. The workplace injuries are paid out by the insurance plans governed by the Workplace Safety and Insurance Act (WSIA). The Workplace Safety and Insurance Board (WSIB) have various functions, that mostly require the ability to provide no fault liability insurance, industry safety guidelines to employers, providing loss of earnings, and covers health care cost for the employees. All employers are required to have a no fault liability insurance for their workplace and employees within 10 days of hiring their full time and part time employees. The premiums for the no fault liability insurance coverages are dependent on businesses classified on the basis of health and safety risks, records of the business, and the size of the payroll.
Duties of Employers
Most importantly, s 25 (1) of the act outlines the duties of the employers, specifically one of them being ensuring the equipment, material and any operating device to be in a good condition. The diseases caused by the workplace health and safety hazards are often classified as “occupational disease”: The health and safety Ontario specifies the following accounts for most of the occupational diseases: contact with machinery, slipping or falling, and musculoskeletal disorder. The Workplace Safety and Prevention Services describes that eighty percent of injuries at workplaces are caused by slip and fall due to tripping, jobs requiring working on height, and unsuitable footwear. The employers are required to take reasonable precautions to ensure the safety of the workers and to potentially prevent any workplace injuries. The data suggests that informing the employees of the existing dangers as a significant mitigating factor in the workplace injuries.
Duties of Employees
Furthermore, the act also specifies the duties of employees while dealing with hazardous material in the workplace and filing claims with the WSIB. The employees are responsible for reporting any changes in income, health status and jobs affecting their WSIB benefits within 10 days. The workers are also required to ensure the accuracy of their data reported. Reporting a misleading event such as the level of impairment in receiving a WSIB benefit is considered an offence. Any individual found with any offence will be fined up to $25,000 and/or six months in jail. Some of the workplace hazards causing occupational diseases such as; Asthma, blood silicosis, and Dermatitis are as follows:
- Noise or vibration
- Extremely hot and cold temperatures or air pressures
- dust or gases
High financial rates and fraudulent claims have been concerns within the automobile insurance industry for many years. Clear discrepancies within Ontario’s Auto Insurance Dispute Resolution System have resulted in long resolution time as a result of the overwhelming number of claims the system receives.
With the current dispute resolution system in shambles, Justice Douglas Cunningham was appointed to review the current system and provide a report with any changes he deems necessary to improve the system. Justice Cunningham released his interim report in November of 2013 and his final report on February 18, 2014, proposing that the Ontario government implement a new administrative tribunal in order to expedite claims in a more quickly and cost-effective manner.
The goal of the tribunal is to resolve matters in approximately six months. Justice Cunningham proposed that mandatory mediation be eradicated and replaced with a settlement conference held before an arbitrator. He believes that this process will encourage parties to resolve their issues more harmoniously as the arbitrator will be able to shed light on the possible outcome if the parties are unable to settle and continue with arbitration.
All in Favour?
After receiving 28 recommendations in favour of the revised dispute resolution system, new legislation, called the Fighting Fraud and Reducing Automobile Insurance Rates Act, was introduced in an attempt to remove the current system from the Financial Services Commission of Ontario and establish a new administrative tribunal that would deal strictly with automobile insurance claims. This specialized agency will allow for more flexibility when dealing with claims due to its independence from government and its less formal hearing process.
What does this mean for you?
As the number of licensed paralegals is growing in Ontario, a new administrative tribunal will allow paralegals to expand their area of practice to include a field that was once dominated by lawyers. As a result, Ontarians will be provided with better access to justice as individuals will be able retain cost-effective representation. In addition, matters before the tribunal will be ensure that Ontarians will receive procedural fairness under Ontario’s Statutory Powers Procedure Act in which ensures that matters be heard in a timely fashion and follow a fair process.
Personal injury in a legal sense means an injury to the body, mind or emotions, other than an injury to property. Damages in personal injury means to compensate the victim for the harm done. The main purpose of the damages is put the victim in the same situation, if harm would not have been not been done. The majority of the cases of personal injury claims come from road accidental claims. Different types of damages
- Medical bills – Defendant is required to pay for all the medical bills which the plaintiff had paid because of injury caused by defendant. It includes –Hospital expense, Medicine bills, doctor fee and future medical expenses too.
- Lost Income – Lost Income here means lost of wages because of injury. Plaintiff is entitled to get paid for all the wages he/she lost because of being sick, which also includes any harm to his/her future ability to earn. In nutshell, it means any loss suffered by the injured in regard of job because of accident.
- Pain and Suffering – This is an another type of damages, where court grant damages for emotional distress, mental pain and suffering, such as shock or any inconvenience caused to plaintiff.
- Wrongful death – Claim in wrongful death is put forward by the family members of the deceased. The purpose behind this to provide relief to the dependents of deceased.
- Punitive Damages – Punitive damages are rarely granted by court, the underlying principle behind these damages is to act as deterrent for wrongful behaviour.
Damages are further categorised, namely- Economic and Non-Economic Damages. Economic Damages can be calculated, such as financial loss and medical bills are called. Therefore, no trouble occurred in calculating these types of damages. However, Non- Economic damages are not pin point, it is not easy to calculate them, for example: Pain and Suffering.