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.

Biking on Ontario roads may be more dangerous than you think

Biking on Ontario roads may be more dangerous than you think

It is finally summer time.  For the few short months of snow-free weather we have in Canada, we can finally pull out our bikes and go about town in an eco-friendly way.  However, before you get too excited, you should know this:  biking may seem safe, but auto-bicycle accidents and related injuries do occur, and the consequences could be severe.

Issues faced by cyclists

Unfortunately, there are numerous issues that cyclists face on the road.  As the Toronto Injury Lawyer Blog suggests, a driver could unintentionally drive too close to a cyclist and the cyclist may lose control of the bike.  The automobile could also come into contact with the cyclist and knock him or her off of the bike.

Besides moving automobiles, the doors of parked or stopped cars and trucks are also dangerous.  As reported by Peter Mansbridge on CBC, “dooring”—the term for knocking a moving cyclist off of his or her bike by opening the car door unexpectedly in front of them—is a major issue on Canadian city streets.  Even streetcar tracks can cause a cyclist to fly off of his or her bike.  The most dangerous part about these accidents is that if the cyclist tumbles onto the road with moving cars or hits something hard, it may be fatal.  Sadly, these tragedies have happened one too many times.

Recent fatalities and injuries

Within these past four years, there have been many reports in the media about these auto-bicycle accidents.  In 2010 alone, at least 17 cyclists were killed and 2,087 cyclists were injured, according to the 2010 Ontario Road Safety Annual Report.  Last month, a 23-year old Caledon man who was biking near County Road 109 suffered minor injuries when he was clipped by a driver who went past the fog line on the road.  Even more recently, on June 23, 2014, a dump truck ran over a 55 year old cyclist in Ottawa, pinning him under the truck.  Although he is now in stable condition at the Ottawa Hospital, his injuries are severe.

Legislation for cyclists

To address the rising concerns about auto-bicycle accidents in Ontario, Bill 173, Highway Traffic Amendment Act (Keeping Ontario’s Roads Safe), 2014 was introduced into the Ontario Legislature on March 17, 2014.  One of the main proposals is that drivers must maintain a distance of at least one metre from the cyclist until the vehicle has passed the bike safely.  In the proposed legislation, fines could be up to $1,000 and three demerit points can be given for texting and driving, as well as for “dooring” a cyclist.

Options available for victims of auto-bicycle accidents

However, despite the government’s efforts in creating cyclist-friendly law, accidents and injuries may still happen.  According to Burn Tucker Lachaine, auto-bicycle victims with injuries, whether or not they are critical or just minor, should still seek professional medical help.  This is because injuries such as minor back injuries, have the potential to become more complicated over time.  The victim may experience pain and suffering, and the spill-over effects may include time off of work, a diminished quality of life, and the inability to carry out regular activities in life.

As a result of the injury, victims may receive compensation, with the size of the compensation proportionate to factors such as how severe the injury is, the out-of-pocket expenses paid, and the pain and suffering that the victim went through.  Additionally, if there was injury to the brain, the victim may be compensated for lost wages as well.  Moreover, a victim may file an accident benefits claim, tort claim, and a claim under the Family Law Act, for the loss of “guidance, care and companionship”, according to Deutschmann Law.  Legal help from a personal injury law firm is suggested for dealing with such claims.

In the case of an auto-bicycle accident with fatalities, the surviving spouse, children, or parents may file a wrongful death lawsuit against the driver and be entitled to burial expenses as well as other damages, as suggested by the Injury Law Group.

How to be prepared and proactive on the road

While bicycle licensing is not available in cities like Toronto, automobile insurance can cover cyclists in no-fault accidents and a homeowner’s policy of insurance can cover cyclists in at-fault accidents in Ontario.  Contacting your insurance company ahead of time may help if and when accidents occur.

The Ministry of Transportation also strongly advises cyclists to wear bicycle helmets as it helps prevent head injuries during accidents.  Cyclists under 18 years old who are biking on the public road are required to wear bicycle helmets, by law.

As for automobile drivers, instead of waiting for Bill 173 to become law, they can also start practicing to be more vigilant and respectful of cyclists on the road.

Given that there are many factors that cause accidents on the road, it may be impossible to eliminate auto-bicycle accidents altogether.  However, there are steps that both drivers and cyclists should take to make the roads they share safer.  Overall, biking on Ontario roads may be more dangerous than you think, but together, and with the help of Bill 173, we can help make the roads safer for all Ontarians going forward.

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

Workplace Injury: What are your rights?

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

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

 

 

 

Case summary: Malin and State Farm Mutual Automobile Insurance Company, 2014

Case summary:  Malin and State Farm Mutual Automobile Insurance Company, 2014

Relevant Facts:

The applicant’s (Abdi Malin) previous claim for benefits from motor vehicle accident was dismissed on March 31, 2014 under O.Reg.403/906 of the Statutory Accident Benefits Schedule from the Insurance Act .   The hearing was conducted by Financial Services Commission of Ontario held for expenses on Dec 6, 2013.  The legal representative for the applicant filed a motion for withdrawal for the said hearing.  Upon receiving the motion for withdrawal, the arbitrator (Edward Lee) granted an adjournment of hearing on expenses for both parties on Mar 21, 2014.  The applicant failed to attend the hearing but the legal representative for the respondent (State Farm Mutual Automobile Insurance) did.  The hearing took place with the absence of the applicant.

Issue:

The Arbitrator (Edward Lee) was tasked to decide:

  • if the respondent (State Farm Mutual Automobile Insurance) would be compensated for expenses (in the form of “tax, disbursement and costs”) in preparation for the hearing.
  • if the respondent was rewarded expenses, how much was it entitled to.

Law:

Tribunal Decision:

The Arbitrator (Lee) awarded the respondent (State Farm Mutual Automobile Insurance) expenses of $2000.00.  The reward covered the expenses the respondent incurred for this hearing including “costs, disbursements and taxes”.

The Arbitrator also exercised his authority to grant expenses to the respondent (State Farm) based on similar rulings following the principle of “broad-minded, pragmatic approach”,

Reasons:

The Arbitrator (Lee) made the above decision because the applicant (Malin) only attended the pre-hearing conference on Sept 10, 2013.  He did not attend the motion of withdrawal hearing for his legal representative on Dec 6, 2013 and also failed to attend the subsequent hearing on Mar 21, 2014.  The respondent, in essence, did not subject to two examinations that required swearing.  Furthermore, the applicant did not comply with the order for evidence submission with regard to cost within thirty days of the decision made on Mar 21, 2014.

Because the respondent (State Farm) attended the original pre-hearing conference and the other two proceedings with applicant’s absence, the arbitrator felt it was reasonable to reward it $2000.00 for the “cost, disbursement and taxes” incurred for these hearings.

 

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

Case Summary: Marie Melanie Armand-Marius and Wawanesa Mutual Insurance Company

Case Summary: Marie Melanie Armand-Marius and Wawanesa Mutual Insurance Company
FSCO A12-002310

Facts of the Case
The applicant in this hearing, Marie Melanie Armand-Marius has brought a claim against the company Wawanesa Mutual Insurance Company (Wawanesa) regarding her application for statutory accident benefits. On March 25, 2010 the applicant claimed she was in a motor vehicle accident which rendered her injured. She applied for the accident benefits from Wawanesa, who declined to pay for all of the benefits requested. Mediation between the parties was attempted but ended without an agreeable resolution therefore Mrs. Armand-Marius applied for arbitration at the Financial Service Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8. Despite her attempt to arbitration, Ms. Armand-Marius has failed to appear at the Commission since the pre-hearing which occurred on April 8, 2013, for this reason Wawanesa is seeking to completely dismiss the application and is seeking compensation for the expenses incurred.

Issues
1. Should the application for arbitration be dismissed?
2. Should Wawanesa be awarded its expenses?

Law
The applicable law in this case is:
Insurance Act, R.S.O. 1990, c.I.8
Expense Regulations under the Insurance Act

Decision
1. The application for arbitration is dismissed.
2. Wawanesa is awarded expenses of the following amount for reimbursement of costs : $1,528.67

Reasons and Significance of Decision
The applicant was a member of an arbitration allied with three other arbitrations. As a result of her lack of communication with the Commission, her counsel and members of the other arbitrations, her application was dismissed. The expenses that Wawanesa had accumulated while incorporating Mrs. Armand- Marius’ claim in their preparation for hearing were recognized and the costs awarded served as reimbursement. In analysis, failure to follow up on the claim leaves the Commission to conclude that the claim has been abandoned.

Amber McVittie-Quinn is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.