Lenworth Scarlett v. Belair Insurance Company Inc.

For the reported decision in its entirety please consult Lenworth Scarlett v. Belair Insurance Company Inc.

Summary

The applicant Mr. Lenworth Scarlett was injured in an automobile accident, and applied for accident benefits under the Statutory Accident Benefits Schedule. It was determined that because Mr. Scarlett’s injuries are classified outside the Minor Injury Guideline, he is eligible to receive accident benefits in excess of the $3500 limit set out in the guideline.

Review of Facts

– Mr. Scarlett was a passenger in a vehicle insured by Belair that was rear ended by another vehicle on September 10, 2010. As a result of the injuries he experienced, he applied for accident benefits.
– At the time of the accident, Mr. Scarlett was new to Ontario and consequently was not covered under OHIP or any other medical plan.
– Mr. Scarlett brought forth evidence from health practitioners that outlined the extent of his injuries, which suggested that the totality of them falls outside of the Minor Injury Guideline. According to the experts, he was suffering from mental health issues such as depression, anxiety and post-traumatic stress disorder as well as physical health conditions such as chronic pain and Temporal Madibular Joint Syndrome (TMJ).
– Belair sought out the opinion of experts who concluded that he suffered soft tissue injuries with no indication that they fall outside the scope of the minor injury guideline. And also concluded that based on his narrative Mr. Scarlett does not meet the criteria for any formal psychological diagnosis.

Key Issue

The issue to be determined in this case is whether or not the complainant Mr. Scarlett is able to recover accident benefits in excess of the $3500 limit set out in the Minor Injury Guideline.

Relevant Law

Minor Injury Guideline
Statutory Accident Benefits Schedule , O Reg. 34/10
The Insurance Act, R.S.O. 1990 c. I.8

Decision

To reach a decision, arbitrator John Wilson looked to the policy objectives and language used in the guideline and related law to determine if Mr. Scarlett’s injuries fall under the classification of the Minor Injury Guideline. It was first decided that the guideline though incorporated into SABS is non-binding and serves only as aid to help with interpreting the schedule. Subsequently the purpose of the superior legislation (The Insurance Act and SABS) was examined to ensure that the interpretation of the guideline was consistent with the intentions of the legislation. It was concluded that the guideline was to be interpreted at face value and in conjunction with the purposes that it specifically outlines. Because of this, the burden of proof was found to rest on the insurer to provide evidence on the balance of probabilities as to why there should be a limitation of coverage.

Based on the compelling evidence offered by the complainant through credible medical reports, and the single medical report lead by Belair, it was determined that Belair did not meet their burden in providing evidence that suggested the claim should be limited to the Minor Injury Guideline. Mr. Wilson accepted the evidence that Mr. Scarlett suffered from TMJ, chronic pain and psychological impairments, which he found to be separate, distinct and outside of the Minor Injury classification. Therefore Mr. Scarlett is able to recover accident benefits beyond the $3500 dollar limit set out in the Minor Injury Guideline.

Commentary

In the past many individuals have tried to dispute the Minor Injury Classification unsuccessfully. This is a precedent setting case because it marks the first time a decision has been made regarding accident benefits and the Minor Injury Guideline. It changes the future of legal claims regarding this area, because they will now be evaluated on an case by case basis because there may be other injuries or pre-existing conditions that can influence the classification.

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

Accident Benefits… Who Knew?

Unknown to many, provincial legislation exists which allows individuals to make claims for injuries sustained during an automobile accident, regardless of which party is held liable. Under Ontario’s Insurance Act, regulation 34/10 The Statutory Accident Benefits Schedule (SABS), outlines the various benefits that one may be eligible to receive.

Who is Eligible?

The individual who was injured along with dependants and close relatives in certain circumstances, are eligible to receive accident benefits. However, individuals who acted in violation of the law will not be eligible for such benefits. This includes but is not limited to driving without a valid license or insurance policy, using the automobile for criminal activity and driving while impaired.

Types of Benefits

Here is a list of the various types of benefits one may be eligible to receive under SABS. Please note that while individuals may be eligible for more then one type of benefit, only one type can be claimed.

Income Replacement Benefits – will partly compensate individuals for lost income because of the injuries sustained in the automobile accident. Individuals can receive up to 70% of their gross income at the time of the collision, with a maximum of no more than $400 per week for 104 weeks.

Non-Earner Benefits – For individuals who are unable to live a normal life as a result of the accident, and do not fall under those eligible to receive income replacement benefits. Individuals must be at least 16 years of age, and a full time student at the time, or had previously finished school within the last year but hadn’t found employment in their field. Individuals will be entitled to receive up to $185 weekly for 104 weeks. After 104 weeks, the amount increases to $320 weekly if still eligible.

Caregiver Benefit – For individuals who are unable to carry out their caregiver role (taking care of dependants) because of injuries incurred during the accident. Individuals must, be living with the dependant at the time, be the primary caregiver, and receive no payment for the care they provide. Can receive $250 weekly for up to 104 weeks for the first dependant, and any additional dependent is an added $50 weekly.

Medical and Rehabilitation Benefits– Reimburse individuals for expenses incurred as a result of the injuries one sustained in a motor vehicle accident, that aren’t otherwise covered in an alternate health plan (such as OHIP). Amounts awarded vary depending on the severity of injuries.

Attendant Care Benefits– To compensate those who are no longer able to care for themselves and therefore must seek out the services of another.

Death and Funeral Payments Benefit- The death benefit is a lump sum given to those individuals who have lost a spouse, dependent or caregiver. Funeral Payments Benefits will provide individuals with a reimbursement for funeral costs.

Other Expense Benefits – Beyond those mentioned above, individuals might be eligible to receive benefits for lost education, home maintenance/housekeeping, visitor benefits amongst others.

How to Apply?

Individuals must first report injuries incurred during the accident separately from any claims for damage to property. Insurance companies must be notified that you wish to apply for accident benefits within 7 days of the accident. Once notified a package from the insurance company containing various forms, is delivered to the applicant for their completion. This package must be completed and returned to the insurance company within 30 days of receiving it. Within 10 days, individuals will be notified of the insurer’s decision to award accident benefits. Decisions could include, approvals for benefits, request for more information or request for an insurer examination (Completed by a regulated health professional chosen by the insurance company for the purpose of conducting a file review or examination to get a second opinion on one’s condition).

If you are looking for further detail, this accident benefits brochure provides a great overview.

If you do wish to pursue a claim it is advised that you seek independent legal advice from a licensed paralegal or lawyer to assist you in the matter.

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

Sukhomlina V. State Farm Insurance

ARINA SUKHOMLINA

V.

STATE FARM MUTUAL AUTOMOBILE, INSURANCE COMPANY

History:
Applicant, Arina Sukhomlina was in a motor vehicle accident causing her injury June 12th 2010. Following her accident, she then received statutory accident benefits from the State Farm Mutual Automobile Insurance Company.

Although mediation sessions took place, nothing was resolved and the applicant applied for arbitration through the Financial Services Commission of Ontario under the Insurance Act, R.S.O 1990, c.1.8 where it was revised.

FSCO had a prehearing discussion that was arranged for April 2014, which Ms. Sukhomlina failed to attend. FSCO then arranged for a hearing date scheduled for June of 2014 as well as sending a letter to Ms. Sukhomlina outlining the consequences of non-attendance for her absence during the prehearing as well as the proceeding information for the hearing date scheduled for June.

Issues:
1. Should State Farm’s Respresentitive, Ms. Kanevsky be permitted to withdraw as counsel for the Applicant, Ms. Sukhomlina?
2. Should an Arbitration date be set up in request of the Applicant’s application?

Analysis:
After the numerous failed attempts to reach the Applicant, Ms. Sukhomlina; it is found that there has been a failure in the solicitor-client relationship between State Farm’s Representative, Ms. Kanevsky and the Applicant, Ms. Sukhomlina. FSCO has allowed permission for State Farm to withdraw as a solicitor of record.

Ms. Sukhomlina’s application for arbitration was dismissed as she was given many notifications (via mail and telephone) of her upcoming proceedings at FSCO and failed to appear. The Applicant failed to meet the onus of establishing entitlement claims made in her Application for Arbitration, which was why it was dismissed.

Reasoning:
The Applicant, Ms. Sukhomlina’s failed to reply or attend any of the proceedings set up by FSCO. The client-solicitor relationship was then looked into further where it was concluded that the Applicant had broken this relationship by failing to respond and/or attend scheduled hearings.

Conclusion:
1. State Farm, Ms. Kanevsky has been granted permission to withdraw as counsel from the Applicant
2. The Applicant, Ms. Sukhomlina was denied the right for Arbitration

This case can be found by clicking this link: https://www5.fsco.gov.on.ca/AD/4217

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

Arbitration easily dismissed in Dukaj v. State Farm Mutual Automobile Insurance Company

Case

Burim Dukaj v. State Farm Mutual Automobile Insurance Company, FSCO A13-004027

Facts

Burim Dukaj, the applicant, sustained injuries in a motor vehicle accident.  He then made an application to receive from State Farm Mutual Automobile Insurance Company statutory accident benefits, according to the Statutory Accident Benefits Schedule.  There was disagreement over the entitled benefits, and although the parties went into mediation, the disagreement persisted.  As a result, Dukaj applied to the Financial Services Commission of Ontario (FSCO) for arbitration under the Insurance Act, R.S.O. 1990, c.I.8.  Although FSCO gave proper notices to Dukaj about the arbitration, he still did not attend the arbitration.  Additionally, the law firm, Lofranco Corriero Personal Injury Lawyers, made a request to discontinue its role as the representative on record for Dukaj.

Issues

  1. Should Lofranco Corriero Personal Injury Lawyers be allowed to withdraw as the representative on record for Dukaj?
  2. Should the Application for Arbitration by Dukaj be dismissed?

Law

Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O Reg 403/96

Insurance Act, R.S.O. 1990, c.I.8

Dispute Resolution Practice Code—Fourth Edition, Rule 9.1(c), 9.8, 37.7

Discussion

Dukaj did not attend the pre-hearing discussion, and it was carried on despite his absence.  Following that, Dukaj was properly notified about the purposes of this hearing and what would ensue in his absence.

Because there is no reason to believe that the notifications were lost as Dukaj did not inform FSCO about changes to his address or contact information, the Commission is satisfied that proper notice of the motion and hearing was served at his last known address, according to Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”).  The motion and arbitration hearing continued in his absence, pursuant to Rule 37.7 of the Code.

Also, since Dukaj did not contest to the withdrawal request of Lofranco Corriero Personal Injury Lawyers, the Commission accepts that the solicitor-client relationship was broken.  The firm is permitted to be removed, with no terms, pursuant to Rule 9.8 of the Code.

Lastly, the onus of showing that he is entitled to the benefits claimed still rests with Dukaj.  As he did not attend the hearing, there was no evidence available to give his claims support.

Conclusion

The arbitration was dismissed.

Significance

In addition to being a good example of an arbitration decision resulting in a dismissal, this case is demonstrative of a few rules in the arbitration process:

  • Demonstrates the application of Rule 9.1(c) of the Code, which gives the Dispute Resolution Group (the “Group”) the right to rely only upon the last know contact information for communications.
  • Demonstrates how Rule 37.7 of the Code gives the right to the Group to continue the hearing as scheduled if neither parties notify the Group of a different agreed upon time and date, within 20 days after the date of notice is issued.
  • Acknowledges that representatives should have the right to be removed from record should a solicitor-client relationship break down, pursuant to Rule 9.8 of the Code.
  • Recognizes that the applicant has the burden to attend the hearing and provide evidence in support of his claims.
Hermione is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

Yogesvaran v. State Farm, 2010 FSCO 3776

FACTS

The applicant Subashini Yogesvaran was injured in an automobile accident on May 13, 2007.  She applied for and received statutory benefits from State Farm.  However, State Farm discontinued her weekly income replacement benefits on Jan 16th 2008 and her housekeeping benefits on Jan 2, 2008.

The board was initially convened to determine if State Farm failed to comply with Section 27 of the Schedule by terminating her benefits.

Ms. Yogesvaran provided the courts with medical evidence and a written statement from her housekeeper stating that she required formal education on assistive devices to be able to take care of herself effectively.  However, this statement did point out that the applicant was not substantially disabled.

Law

Section 282(10) of the Insurance Act provides as follows:

(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.

ISSUE

1.         Is Ms. Yogesvaran entitled to a special award pursuant to subsection 282(10) of the Insurance Act?

2.         Is Ms. Yogesvaran entitled to her expenses in this arbitration?

 

RULE

The insurer must display unreasonable conduct in order to award special damages.

ANALYSIS

After an adjournment the board ruled that State Farm failed to properly terminate the benefit programs, therefore they are responsible for payment of income replacement benefits from Jan 17, 2008 until the benefits are terminated in accordance with section 27.   They are also responsible to pay housekeeping benefits from Jan 3, 2008 to May 13, 2009.

The board went on to review multiple arbitration decisions, starting with the 1993 decision in Plowright and Wellington Insurance Company where unreasonable conduct is defined as: “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.  Unfortunately Ms. Yogesvaran failed to proof unreasonable conduct as defined by the Plowright case.

Although Ms. Yogesvaran provided two pieces of medical evidence, the board found these reports were inconsistent and contained elements that could raise doubt, but not prove unreasonable conduct.  The written statement provided by her housekeeper didn’t help her to prove unreasonable conduct.  Based on these reasons, State Farm was ordered to pay the benefits as discussed above and no special damages were awarded to her.

On the issue of costs, the court asked the parties to submit all of their costs to the courts within 10 days for a decision to be delivered at a later date.

CONCLUSION

The board awarded Ms. Yogesvaran income replacement benefits and housekeeping benefits, but awarded no special damages because there was no proof of unreasonable conduct on the part of the insurer by halting payments of her accident benefits.

 

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

Case Review: Armand- Marius v. Wawanesa

Armand-Marius v. Wawanesa

Facts:

On March 25, 2010, Marie Melanie Armand- Marius claims that she was involved in a car accident. When she applied for her benefits through Wawanesa Mutual Insurance Company, they refused to pay part of her claim. Ms. Armand-Marius had attended mediation with Wawanesa but no agreement could be reached. Ms. Armand-Marius applied to the Financial Services Commission of Ontario for arbitration. Ms. Armand-Marius did not attend the hearing, did not have any legal representation and did not make any further communication with the Commission. She was properly notified of the hearing and she did attend the pre-hearing.

Issues:

There are two issues:

1. Should the application proposed by Ms. Armand- Marius for arbitration be dismissed?
2. Should her insurer, Wawanesa be awarded expenses?

Law:
Under the Expense Regulation, Wawanesa is entitled to be reimbursed for Ms. Armand-Marius’s portion of the costs for creating documents for the hearing that she did not attend.

The Commission under the Insurance Act, R.S.O 1990, c.I.8 section 282, is responsible for arranging arbitrations and determine all of the issues in dispute. They have jurisdiction to decide if the arbitration will proceed.

Decision/Reason for Decision:

In this matter, the Commission decided to dismiss the application for arbitration to award Wawanesa some of its expenses .Wawanesa was looking to receive $6,193.14 from Ms. Armand- Marius for all of the documents that were produced . These documents included a EUO transcript, and engineering report and fees for photocopying (as well as HST). The Commission decided that they would award Wawanesa $1,528.67. Ms. Armand- Marius was responsible for paying ¼ of the fees for everything except the EUO report which she was responsible to pay $676.93 for. The Commission found that ¼ of the costs was Ms. Armand- Marius’s portion, because her case was related to three others and she should not be responsible to pay the entire amount herself.

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

Arina Sukhomlina and State Farm Mutual Automobile Insurance Company

Facts

  • On June 12, 2010 Arina Sukhomlina was injured in a motor vehicle accident. She received statutory accident benefits from State Farm Mutual Automobile Insurance Company. Mediation did not work for the parties and therefore Ms. Sukhomlina applied for arbitration in order to settle the dispute.

History

  • Throughout the course of the hearings Ms. Sukhomlina failed to attend arbitration, on a number of occasions. She was given a notice after missing her first hearing but still failed to attend.

Issue

  • There are 2 issues at hand they are the following:
  • Should Ms. Kanevsky be allowed to withdraw as counsel for Ms. Sukhomlina?
  • Should Ms. Sukhomlina’s application for arbitration be dismissed?

Rule

  • The court looked at client-solicitor relationships, and Ms. Sukhomlina’s failure to reply/ attend arbitration

Analysis

  • Ms. Sukhomlina’s representative had tried several times to contact her, but she did not get a reply from her. State Farm also did not protest against the representative’s withdrawal, and therefore it was enough of a reason for the court to approve the representative’s withdrawal.
  • Ms. Sukhomlina’s failure to respond /attend the proceedings (that were sent to her last known address) was satisfactory in dismissing her arbitration. She was also contacted by phone, but once against there was a failure to respond. This lead to her failure to prove her claims and therefore her application was dismissed.

Conclusion

  • The application for arbitration was dismissed and client-solicitor relationship is withdrawn. There were no expenses sought therefore, none were given.

This case can be found on https://www5.fsco.gov.on.ca/AD/4217

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