SABS

  • Off-Coverage Still Means On-Claims

    November 1, 2016 by

    A FSCO arbitrator has confirmed that the first insurer that receives a completed application for accident benefits is required to adjust and pay the claim, even if the insurer is taking an off-coverage position. Overview In Cankaya v. Intact /

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  • Peter Morris

    When do the changes to SABS take effect? It depends who you ask.

    October 19, 2016 by

    The changes to the Ontario Statutory Accident Benefits Schedule introduced on June 1st, 2016, were complicated enough. Now, to make matters worse, there are mixed messages coming from the industry as to when policyholders are affected by these changes. For

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  • SCC Dismisses Leave Applications in Loss Transfer Laches Cases

    May 5, 2016 by

    The Supreme Court of Canada has dismissed the applications for leave to appeal from Lombard/Zurich in the “loss transfer laches” cases. Both insurers were trying to seek leave from the Court of Appeal of Ontario’s decision in November 2015, which

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  • Willie Handler
    insBlogs Auto Business Risks

    Benefit Cuts Lead To Modest Rate Reductions

    April 26, 2016 by

    FSCO’s latest quarterly rate approval numbers have been released and suggest that some savings have been accrued from the statutory accident benefit cuts that become effective on June 1.FSCO approved 50 private passenger automobile insurance rate filin…

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  • ONSC: Loss Transfer Deductible Applied Per Claimant

    January 22, 2016 by

    A Superior Court judge has held (finally) that the $2,000 loss transfer deductible is applied per claimant. Ontario’s loss transfer scheme is found in section 275 of the Insurance Act. Section 275 (1) allows the insurer paying accident benefits to

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  • 2015: The Year Before 2016

    January 14, 2016 by

    My recent article in the January 2016 K-W OIAA Bulletin As we look forward to a new year of insurance law excitement, let us reflect on some of the interesting cases and legal developments that impacted the auto insurance industry

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  • Willie Handler
    insBlogs Auto

    Government Posts Proposed Changes to DRS Regulations

    December 9, 2015 by

    The Ministry of Finance has posted proposed changes to Insurance Act regulations to provide for the transition the Automobile Insurance Dispute Resolution System from the Financial Services Commission of Ontario (FSCO) to the Ministry of the Attorney General’s Licence Appeal Tribunal (LAT), and the wind down of disputes filed at FSCO. 

    Proposed amendments include:

     • The last date for submitting applications for mediation, neutral evaluation, or the appointment of an arbitrator to FSCO will be March 31, 2016. 

     • An application for an appeal to the FSCO Director of Arbitrations will only be accepted where the application for the appointment of an arbitrator was received by March 31, 2016. 

     • As well, an applications for a variation or revocation to the FSCO Director of Arbitrations will only be accepted where the application for the appointment of an arbitrator was received by March 31, 2016. 

     • The Office of the Director of Arbitrations will continue to function until all notices of appeal and all applications for variation or revocation have been finally determined. 

     • Statutory Accident Benefits Schedule (SABS) provisions that apply to the dispute resolution process at FSCO will continue to apply, as they read on March 31, 2016, to all applications that were received by FSCO before the transition date but are not finally determined before that date. The SABS will also be amended, where necessary, to apply to applications filed at the LAT on or after April 1, 2016.

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  • Claimant hits grand slam at FSCO hearings

    December 1, 2015 by

    A November 30, 2015 Law Times article titled “Arbitrator orders rare special award against insurer” reports on an unusual FSCO case between Thomas Waldock and his auto insurer. The case not only highlights the constant risks associated with relying on insurer

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  • Willie Handler

    FSCO Prepared to Introduce New Minor Injury Protocols

    September 18, 2015 by
    Why is FSCO releasing new treatment protocols?

    In the Superintendent’s report on the Five Year Review released in 2009, a recommendation was made to develop a treatment protocol for minor injuries that reflects current scientific and medical literature.  This recommendation was accepted by the government and confirmed in the 2012 Ontario Budget, which acknowledged that newer scientific and evidence-based approaches can be applied to the treatment of minor injuries resulting from automobile accidents.

    How were the new treatment protocols developed?

    In 2012, Dr. Pierre Côté, Associate Professor, Faculty of Health Sciences, University of Ontario Institute of Technology, was awarded a consulting contract to develop the Minor Injury Treatment Protocol (MITP) after an open competitive Request For Proposal process.

    The Ontario Protocol for Traffic Injury Management Collaboration includes a multidisciplinary team of expert clinicians (from medical, dental, physiotherapy, chiropractic, psychological, occupational therapy and nursing disciplines), academics and scientists (epidemiologists, clinical epidemiologists and health economists), a patient liaison, a consumer advocate, a retired judge and automobile insurance industry experts.  I played a small role on the project team.

    Over the 2-year course of the project, the project team drew upon three sources of information concerning traffic injury rehabilitation.

    1.    The team critically reviewed the contents and evidentiary basis of published clinical practice guidelines for the management of traffic injuries.

    2.    They carried out an exhaustive search followed by a rigorous methodological evaluation of the current scientific literature concerning the management of traffic injuries published in peer-reviewed journals in the English language. They screened 234,995 abstracts and conducted in depth reviews of 597 scientific papers. This effort was summarized in 43 new systematic reviews of the literature.

    3.    They also conducted a new study in which they gathered and carefully considered the narratives of Ontarians who have sustained injuries in traffic collisions and received health care.

    The Final Report of the Minor Injury Treatment Protocol Project, titled “Enabling Recovery from Common Traffic Injuries: A Focus on the InjuredPerson” (Final Report) was delivered to FSCO at the end of December 2014

    What does the Final Report recommend?

    The Final Report recommends a new classification of traffic injuries. The natural history of the initial injury is the basis for classification. A Type I injury is likely to recover within days to a few months of the collision; but during the period of recovery the patient may benefit from education, advice, reassurance and time-limited evidence-based clinical care. Type I injuries are the focus of this report. A Type II injury is not likely to undergo spontaneous recovery, and the injured person may require medical, surgical and/or psychiatric/psychological care. Type III injuries are a subset of Type II injuries, that involve permanent catastrophic impairment or disability. The care for Type II and Type III injuries is not covered in this report.

    Persons with Type I injuries should be educated and reassured from the outset that their own inherent healing capacities are likely to lead to a substantial recovery. They should also be informed that only a discrete set of treatments show evidence of any benefit; and that the same evidence shows that benefit is largely on the basis of pain alleviation. Healthcare professionals need to listen to the patient’s concerns and emphasize measures to assist them to cope, recognize and avoid complications.

    The MITP includes clinical prediction rules to screen for patients who may be at higher risk for developing chronic pain and disability. In addition, it focuses on treatment outcomes, and provides health care providers with numerous milestones to measure progress.

    Interventions for Type I injuries should only be provided in accordance with published evidence for effectiveness, including parameters of dosage, duration, and frequency; and within the most appropriate phase. The emphasis during the early phase (0-3 months) should be on education, advice, reassurance, activity and encouragement. Health care professionals should be reassured and encouraged to consider watchful waiting and clinical monitoring as evidence-based therapeutic options during the acute phase. For injured persons requiring therapy, time-limited and evidence-based intervention(s) should be implemented on a shared decision-making basis, an approach that equally applies to patients in the persistent phase (4-6 months).

    Sixteen care pathways have been developed to cover the clinical management of:

    ·         Neck pain and associated disorders

    ·         Soft tissue disorders of the upper extremities

    ·         Temporomandibular disorders

    ·         Mild traumatic brain injuries

    ·         Low back pain

    What’s next?

    FSCO had been conducting a consultation process with stakeholders.  Before any final guidelines can be implemented, the government will need to make changes to the Statutory Accident Benefits Schedule. 

    The complexity of the proposed changes will require a substantial educational initiative.  Clinicians and insurance company claims staff will need to be educated and trained on the recommended care pathways.  In some cases there may be resistance.  In addition, it is advisable that a public education campaign be undertaken to educate the general public on the proper management of soft tissue injuries.  It is not clear who would fund such a significant education campaign.  

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  • More Changes Coming to SABS in June 2016

    September 15, 2015 by

    Published in the K-W OIAA September 2015 Bulletin by Dan Strigberger On August 26, 2015, the Ontario Legislature filed Bill 251/15, which amends the Statutory Accident Benefits Schedule in a number of remarkable ways. For the most part, the amendments

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  • Willie Handler
    insBlogs Auto

    New Catastrophic Impairment Definition To Be Introduced June 2016

    September 7, 2015 by

    The Ontario government has finally amended the SABS definition of catastrophic impairment.

    The government’s 2010 auto insurance reforms included recommendations most seriously injured accident victims. The government directed FSCO to consult with the medical community to amend the definition of catastrophic impairment as set out in the Statutory Accident Benefits Schedule. 

    In 2010 FSCO announced the appointment of Dr. Pierre Côté as Chair of the Catastrophic Impairment Expert Panel.  The Panel submitted it’s recommendations to the FSCO Superintendent in the spring of 2011.  In December 2011, the Superintendent submitted his report to the government. 

    The new definition is effective June 1, 2016.

    Below is a chart that compares the current SABS definition, the Superintendent’s recommended definition and the new SABS definition that will be introduced next year.

    Current SABS

    Superintendent’s 2011 Report

    2016 SABS

    Paraplegia or quadriplegia;

    paraplegia or tetraplegia that meets the following criteria i  and either ii or iii:

    ii. The neurological recovery is such that the permanent ASIA Grade can be determined with reasonable medical certainty according to the ASIA  and

    iii. The permanent ASIA Grade is A, B, or C or,

    iv. The permanent ASIA Grade is or will be D provided that the insured has a permanent inability to walk independently as defined by scores 0–5 on the Spinal Cord Independence Measure item 12 and/or requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage the residual neuro-urological impairment.

    Paraplegia or tetraplegia that meets the following criteria:

    i. The insured person’s neurological recovery is such that the person’s permanent grade on the ASIA Impairment Scale can be determined.

    ii. The insured person’s permanent grade on the ASIA Impairment Scale is or will be,

    A. A, B or C, or

    B. D, and

    1. the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5,

    2. the insured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage a residual neuro-urological impairment, or

    3. the insured person has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion or an implanted device.

    The amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;

    Severe impairment of ambulatory mobility, as determined in accordance with the following criteria:

    i. Trans-tibial or higher amputation of one limb, or

    ii. Severe and permanent alteration of prior structure and function involving one or both lower limbs as a result of which it can be reasonably determined that the Insured Person has or will have a permanent inability to walk independently and instead requires at least bilateral ambulatory assistive devices [mobility impairment equivalent to that defined by scores 0–5 on the Spinal Cord Independence Measure item 12, ability to walk <10 m).

    Severe impairment of ambulatory mobility or use of an arm, or amputation that meets the following criteria:

    i. Trans-tibial or higher amputation of a leg.

    ii. Amputation of an arm or another impairment causing the total and permanent loss of use of an arm.

    iii. Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12, and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.

    Total loss of vision in both eyes

    Legal blindness in both eyes due to structural damage to the visual system. Non-organic visual loss (hysterical blindness) is excluded from this definition.

    Loss of vision of both eyes that meets the following criteria:

    i. Even with the use of corrective lenses or medication,

    A. visual acuity in both eyes is 20/200 (6/60) or less as measured by the Snellen Chart or an equivalent chart, or

    B. the greatest diameter of the field of vision in both eyes is 20 degrees or less.

    ii. The loss of vision is not attributable to non-organic causes.

    Brain impairment that results in,

    (i) a score of 9 or less on the Glasgow Coma Scale, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

    (ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, according to a test administered more than six months after the accident by a person trained for that purpose;

    Traumatic Brain Injury in Adults (18 years of age or older):

    ii. Catastrophic impairment, based upon an evaluation that has been in accordance with published guidelines for a structured GOS-E assessment to be:

    a) Vegetative (VS) after 1 months or

    b) Severe Disability Upper (SD+) or Severe Disability Lower (SD -) after 6 months, or Moderate Disability Lower (MD-) after one year due to documented brain impairment, provided that the determination has been preceded by a period of in-patient neurological rehabilitation in a recognized rehabilitation center.

    If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury that meets the following criteria:

    i. The injury shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.

    ii. When assessed in accordance with the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale, the injury results in a rating of,

    A. Vegetative State (VS or VS*), one month or more after the accident,

    B. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or

    C. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.

    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;

    A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition 1993, (GEPI-4), results in a physical impairment rating of 55 per cent whole person impairment (WPI).

    i. Unless covered by specific rating guidelines within relevant Sections of Chapters 3-13 of GEPI-4, all impairments relatable to non-psychiatric symptoms and syndromes (e.g. functional somatic syndromes, chronic pain syndromes, chronic fatigue syndromes, fibromyalgia Syndrome, etc.) that arise from the accident are to be understood to have been incorporated into the weighting of the GEPI-4 physical impairment ratings set out in Chapters 3 – 13.

    ii. With the exception of traumatic brain injury impairments, mental and/or behavioural impairments are excluded from the rating of physical impairments.

    iii. Definition 2(e), including subsections I and II, cannot be used for a determination of catastrophic impairment until two years after the accident, unless at least three months after the accident, there is a traumatic physical impairment rating of at least 55% WPI and there is no reasonable expectation of improvement to less than 55% WPI.

    A physical impairment or combination of physical 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 physical impairment of the whole person.

    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 behavioural disorde

    The post-traumatic psychiatric impairment(s) must arise as a direct result of one or more of the following disorders, when diagnosed in accordance with DSM IV TR criteria: (a) Major Depressive Disorder, (b) Post Traumatic Stress Disorder, (c) a Psychotic Disorder, or (d) such other disorder(s) as may be published within a Government Guideline.

    ii. Impairments due to pain are excluded other than with respect to the extent to which they prolong or contribute to the duration or severity of the psychiatric disorders which may be considered under Criterion (i).

    iii. Any impairment or impairments arising from traumatic brain injury must be evaluated using Section 2(d) or 2(e) rather than this Section.

    iv. Severe impairment(s) are consistent with a Global Assessment of Function (GAF) score of 40 or less, after exclusion of all physical and environmental limitations.

    v. For the purposes of determining whether the impairment is sufficiently severe as to be consistent to Criterion (iv) – a GAF score of 40 or less – at minimum there must be demonstrable and persuasive evidence that the impairment(s) very seriously compromise independence and psychosocial functioning, such that the Insured Person clearly requires substantial mental health care and support services. In determining the demonstrability and persuasiveness of the evidence, the following generally recognized indicia are relevant:

    a) Institutionalization;

    Repeated hospitalizations, where the goal and duration are directly related to the provision of treatment of severe psychiatric impairment;

    c) Appropriate interventions and/or psychopharmacological medications such as: ECT, mood stabilizer medication, neuroleptic medications and/or such other medications that are primarily indicated for the treatment of severe psychiatric disorders;

    d) Determination of loss of competence to manage finances and property, or Treatment Decisions, or for the care of dependents;

    e) Monitoring through scheduled in-person psychiatric follow-up reviews at a frequency equivalent to at least once per month.

    f) Regular and frequent supervision and direction by community-based mental health services, using community funded mental health professionals to ensure proper hygiene, nutrition, compliance with prescribed medication and/or other forms of psychiatric therapeutic interventions, and safety for self or others.

    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) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.

    A mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.

    if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale, the Glasgow Outcome Scale or the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in clause (2) (d), (e) or (f) can be applied by reason of the age of the insured person.

    Paediatric Traumatic Brain Injury (prior to age 18)

    i. A child who sustains a traumatic brain injury is automatically deemed to have sustained a catastrophic impairment provided that either one of the following criteria (a or b) is met on the basis of traumatic brain injury sustained in the accident in question:

    a) In-patient admission to a Level I trauma centre with positive findings on CT/MRI scan indicating intracranial pathology that is the result of the accident, including but not limited to intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift, or pneumocephaly; or

    b) In-patient admission to a publically funded rehabilitation;

    Paediatric catastrophic impairment on the basis of traumatic brain injury is any one of the following criteria:

    ii. At any time after the first 1 months, the child’s level of neurological function does not exceed the KOSCHI Category of Vegetative.

    iii. At any time after the first 6 months, the child’s level of function does not exceed the KOSCHI Category of Severe. (2) May be fully conscious and able to communicate but not yet able to carry out any self care activities such as feeding. (3) Severe Impairment implies a continuing high level of dependency, but the child can assist in daily activities; for example, can feed self or walk with assistance or help to place items of clothing.

    iv. At any time after the first 9 months, the child’s level of function remains seriously altered such that the child is for the most part not age appropriately independent and requires supervision/actual help for physical, cognitive and/or behavioural impairments for the majority of his/her waking day.

    If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria:

    i. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.

    ii. The insured person is accepted for admission, on an in-patient basis, to a program of neurological rehabilitation in a paediatric rehabilitation facility that is a member of the Ontario Association of Children’s Rehabilitation Services.

    iii. One month or more after the accident, the insured person’s level of neurological function does not exceed category 2 (Vegetative) on the King’s Outcome Scale for Childhood Head Injury.

    iv. Six months or more after the accident, the insured person’s level of neurological function does not exceed category 3 (Severe disability) on the King’s Outcome Scale for Childhood Head Injury.

    v. Nine months or more after the accident, the insured person’s level of function remains seriously impaired such that the insured person is not age-appropriately independent and requires in-person supervision or assistance for physical, cognitive or behavioural impairments for the majority of the insured person’s waking day.

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  • Div Crt Resets Clock on Attendant Care Interest

    July 22, 2015 by

    The Ontario Divisional Court has allowed an insurer’s appeal in a case deciding when interest begins to run on attendant care benefits that are found to be owing under the SABS. In Grigoroff v Wawanesa, the plaintiff was involved in

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  • Willie Handler
    insBlogs Auto

    More Benefit Cuts Coming for Ontario Auto Insurance Consumers

    April 24, 2015 by

    It seems the road to more affordable auto insurance once again winds its way through further benefit cuts.  Those aren’t the only changes proposed in the 2015 Ontario Budget but it remains an ongoing piece of controlling the cost of Ontario premiu…

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  • SCC finds Nexus in Zurich v. Chubb

    April 22, 2015 by

    The Supreme Court of Canada has reversed the Ontario Court of Appeal’s decision in Zurich v. Chubb.  The claimant was driving a Ford Windstar that she had rented from Wheels4Rent, a car rental agency.  On September 23, 2006, she had

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