Auto Collision Fraud

Organized auto-insurance crime has become widespread in Canada, and Ontario has the largest number of fake crashes. The ringleaders are creating more sophisticated and “real” collisions, with owners/employees of medical and rehab clinics taking part. They will also call an ambulance, tow-truck etc. to make it look more real. In 2012 forty-three people were arrested and 199 criminal charges were laid. In a report done in 2012 it was found that $1.6 billion of innocent insurers money, were going towards payments for these frauds. Scam artists specializing in auto collision insurance have racked up millions of dollars, specifically in the past 5 years.

Courts are also becoming more rigorous with the sentencing of such criminals. The leader in the GTA scams has received a 3.5 year sentence. It is also believed that some of New York states masterminds (who were previously involved with insurance fraud of $249 million) have now come to Toronto.

This type of insurance fraud does not only deal with individuals who know that it is a scam, but also deals with innocent drivers. These drivers are victims to collision fraud; the scam artist(s) will make it look as though it is the innocent driver’s fault. There are many different types of “tricks” that they use, ex: “swoop and squat” the scammer will quickly pull in in front of the innocent driver and hit the breaks before the other driver can stop. There is the “left-turn bullet”, this is when the innocent driver is waiting to make a left turn and the scammer tells them to go ahead, and then slams into the car. The problem here is not only that insurance companies are being scammed, but they are also putting innocent people in harms way, an example of this is when an innocent teenager suffered permanent brain damage.

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

 

Lo-Papa v. Certas, FSCO A12-005538

Facts:

Ms. Julia Lo-Papa, the Applicant, was injured in a car accident on October 20, 2010.  The Insurer, Certas Direct Insurance Company, paid her the benefits afforded to her under the Statutory Accident Benefits Schedule.  The Insurer classified her injuries as primarily minor and thus limited her benefits to $3,500, as per the Minor Injury Guideline (MIG) Cap.  The Applicant claims that the injuries she sustained were not primarily minor and require treatment beyond what the $3,500 Cap allows for. The Applicant and Insurer participated in mediation, but were unable reach a settlement.  As a result, the Applicant requested arbitration through the Financial Services Commission of Ontario (FSCO).

 

Issues:

Does the Minor Injury Guideline Cap of $3,500 relate to the Applicant?

If no, is the Applicant eligible to receive monies for the disputed assessments and treatment plans?

 

Law:

In order to exclude the MIG Cap, s. 38(3)(c)(i) of the Statutory Accident Benefits Schedule requires that a treatment and assessment plan must clearly provide:

that the insured person’s impairment is not predominantly a minor injury,

OR

that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition.

 

Analysis:

The onus is on the Applicant to prove that the Cap does not apply because the injuries sustained fall outside of the MIG.  As stated by Director’s Delegate Evans in Scarlett v. Belair Insurance Company Inc., FSCO A12-001079, “the burden of proof always rests on the insured of proving that he or she fits within the scope of the coverage.” The Applicant submitted a written report by Dr. Howard Jacobs, Chronic Pain Specialist, which stated that she has experienced anxiety and depression since the car accident.  The report did not address these symptoms in relation to the soft tissue injuries she sustained, or whether the Applicant had any pre-existing medical conditions that may be interfering with her recovery.  The report actually failed to mention the MIG at all.  The Applicant submitted no further evidence to support her claim. Arbitrator Arbus concluded that the Applicant did not provide sufficient evidence as required by the Schedule to prove that the MIG Cap did not apply to her; she failed to meet the burden of proof.

 

Conclusion:

The Minor Injury Guideline Cap of $3,500 relates to the Applicant, therefore, she is not eligible to receive monies for the disputed assessments and treatment plans.

 

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

 

Marie Melanie Armand-Marius (Applicant) and Wawanesa Mutual Insurance Company (Insurer) Arbitration, Final Decision, FSCO 4217

Case Brief
Citation
Marie Melanie Armand-Marius (Applicant) and Wawanesa Mutual Insurance Company (Insurer) Arbitration, Final Decision, FSCO 4217
Decision Date: June 26, 2014
Adjudicator: Rosemary Muzzi
Facts
• 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
Issues
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?
Decision
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.

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

Antoinetta Valle and Aviva Canada Inc., FSCO A04-000773

FACTS:

The case is disputed for the benefits not received by the applicant involving her two accidents, the first one being on October 29, 2003 and the second one May 9, 2004.  The present issue arose when the respondent, Aviva Canada Inc., the applicant’s insurance provider, terminated the applicant’s benefits such as attendant care, housekeeping services and caregiver from June 25th to December 8, 2004 to which the applicant claimed to be entitled to under The Statutory Accident Benefits Schedule. The benefits were not resumed until December 8, 2004, the date on which the applicant submitted to orthopedic evaluation. Moreover, the applicant argues the two pain relief treatments denied on the basis of being considered unreasonable and unnecessary by the respondent should be paid for.

In the present case, the applicant claimed to have sustained soft tissue injuries as well as psychological injuries due to the motor vehicle accidents, making her unable to carry on her daily activities such as taking care of herself, her mother and her grandson, Jonathan. The applicant supports her proposition of being entitled to the above denied benefits based on recommendations by an occupational therapist, Ms. Farah Khan and Dr. Chan, who examined her and recommended caregiving and housekeeping assistance for her.

The respondent, Aviva Canada Inc, takes a position that several medical examinations conducted by them reveal the applicant’s injuries to be temporary and of medical tenderness with the ability to heal rapidly, relying on the reports Dr. Joel A. Finkelstein. Also, the respondent seek to submit the applicant’s failure to attend medical examinations scheduled by the respondent as a factor in denying the additional attendant, caregiver, and housekeeping benefits. Thereby, relying on these expert opinions, the respondent takes a position that it does not prevent Mr. Valle from taking care of her mother, grandchild and her home and herself as she was able to before the accidents.

ISSUES:

1. 1. Is Ms. Valle entitled to additional attendant care benefits?
2. Is Ms. Valle entitled to additional housekeeping benefits?
3. Is Ms. Valle entitled to additional caregiver benefits?
4. Is Ms. Valle entitled to recover a special award in respect of Aviva’s refusals to pay additional caregiver, housekeeping and attendant care benefits and in respect of Aviva’s decision to suspend benefits from June 25, 2004 to December 8, 2004?
5. Is Ms. Valle entitled to additional medical benefits?

LAW:

The Statutory Accident Benefits Schedule– Accidents on and after November 1, 1996. O. Reg. 462/96, s.2.[2]

The case is brought in pursuant to Insurance Act, R.S.O. 1990, c.I.8.

ANALYSIS:

1)      On May 15, 2004, post second accident, as the applicant was assessed by an earlier occupational therapist, Ms. Farah Khan, was determined to have required 17.75 hours a week to attend for dressing, undressing, grooming, feeding, personal hygiene, coordination of care, exercise, skin care and many other personal activities, costing $932.26 per month. On a second assessment by a registered nurse, on November 11, 2004, Ms. Valle was still assessed as requiring an attendant for 4.74 hours for dressing, undressing, feeding and personal hygiene at a cost of $194.83 per month.

2)      The applicant herself testified and provided information stated in the forms to Aviva along with the testimony of a housekeeper, Ms. Lina Cuzzolino, confirming that the applicant was in need of a housekeeping service. The arbitrator relied upon the following section of the Schedule in answering whether in the present case the applicant sustained injuries substantially affecting her ability to carry out daily functions:

  1. (1)The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. O. Reg. 403/96, s. 22 (1).

The arbitrator awarded the total amount of $733.86 for housekeeping services to Ms. Valle. In reaching this amount, the artibtrator considered the first in house assessment by a physiotherapist, Ms. Sheri Corriero, which stated the applicant required about 5.6 hours a week to account for activities such as dressing, undressing, personal hygiene and bathing. In addition to his, the second and post second accident assessment by an occupational therapist, Ms. Farah Khan, was also considered in which the applicant was assessed as requiring an attendant for similar activities above, requiring 5.09 hours a week in second assessment and 17.75 hours a week post second accident, respectively.By taking these assessments into consideration, the arbitrator deemed it necessary as stated in the above section, to allot housekeeping benefits to the applicant as she was substantially impaired, limiting her ability to attend to the needs of her family and conduct any home chores anymore.

 

3)      The arbitrator considers that although Ms. Valle provided some care for her grandson, Jonathan, including preparing his lunch and boarding him to school bus, but determines that these duties limit her role as a caregiver as described below under the Schedule. In pursuant to the following provision of the Schedule, the arbitrator decides the need for caregiver benefits in this case.

13.(1)The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

1. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

By referring to the above provision, the arbitrator decided that the applicant was not the primary caregiver of the child as he was in custody of his mother, Elsa, every evening and on the weekends and that just getting him ready for school would not constitute being under applicant’s primary custody. Additionally, in Ms. Valle’s position of requiring caregiver benefits to care for her mother is based on the two assessments by Ms. Farah Khan stating that it requires about 7 hours a week to dedicate the care needed to the elderly. The applicant is confirmed to be the primary caregiver of her mother and the latter was confirmed to be residing with the applicant, complying with the above provision to be considered a person needing a caregiver. Furthermore, Ms. Khan testifies that she observed the applicant’s mother requiring care for similar activities as the applicants such as mobility, personal hygiene, dressing, undressing and grooming.

4)   The arbitrator determines that Avivawas being unreasonable by withholding the applicant’s entitlement to the benefits under section 282 (10) of the Insurance Act. This section of the Act states the following:

(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 Statutory Accident 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. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.

The arbitrator considered the applicant’s unwillingness to cope with Aviva’s request for medical examinations to determine the extent of benefits that she was entitled to as a mitigating factor in determining the amount of special benefits awarded to her. However, the arbitrator significantly relied upon the application of the above provision in determining whether the applicant is entitled to special cost benefits, determined that Aviva unreasonably withheld Ms. Valle’s payment of her benefits between the time periods of June 25th, 2004 to December 8th, 2004.

5)  The treatment plans involving soft issue therapy and mobilsation, received by the applicant was considered necessary and reasonable and have considered being an expense to be borne by the respondent. In citing a case law General Accident Assurance C. of Canada and Violi, the arbitrator cited pain relief treatments as being reasonable and necessary. The DAC’s assessors’ opinion of the first such treatment being considered sufficient was due to the fact that they examined the applicant after she received her first treatment. Lastly, as Ms. Vella still was required to have caregiver and housekeeping services, that contributed to the fact that she was still suffering from the injuries effect and required further medical treatments.

CONCLUSIONS:

1. Due to the above factors taken into consideration, the additional attendant care benefits that the applicant is entitled to are a total of $2,352.46, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

2. Ms. Valle is entitled to additional housekeeping benefits in the amount of $733.86, plus interest in accordance with section 46 of the Schedule from December 31, 2004.

3. In applying the rate of Form 1 as a guide, the arbitrator determined the total amount of $174.80 plus interest in accordance with section 46 of the Schedule from November 4, 2004 to be given for caregiver benefits to Ms. Valle.

4. By considering the above factor and totality of the benefits awarded to Ms. Vello in this arbitration, the arbitrator awards $500 including interest payable as the amount of special award benefits for suspension of benefits from July 22, 2004 to November 4, 2004.

5. Ms. Valle is entitled to an additional medical benefit in the amount of $1,523, plus interest in accordance with section 46 of the Schedule from April 20, 2004.

SIGNIFICANCE:

The significance of this case is that it demonstrates several real life incidents which individuals involved in motor vehicle accidents are faced with. It was to be noted that the arbitrator truly played the role of an impartial decision maker as he considered the consequences of several things like such as weighing the mitigating factors, the factors in favour of the opposite party, Aviva, along with the factors in favour of the applicant in making his decisions and presented conditions upon which the decision would have been reversed. Moreover, this case signifies that although one party to a proceeding was deficient in performing their duties, as the applicant failed to attend several medical examinations scheduled by Aviva, but this would not relieve the obligation of the other party to continue to perform their duties in a good faith, to provide the applicant with her entitled benefits.

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