The Ontario Trial Lawyers Association has recently sent out a newsletter to every MPP in Ontario regarding the Insurance Bureau of Canada misinforming officials about insurance premiums, claims cost and profits.
McLeish Orlando stands behind OTLA in ensuring that MPP officials are well informed. See below for the newsletter sent out by OTLA.
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The Financial Services Commission of Ontario (FSCO) Panel selected to review the definition of Catastrophic Injuries has released their report.
To those consumers not familiar with this, see my previous blog “Catastrophic Impairment under a Microscope.” It was anticipated that the review of the definition would give rise to maintaining or granting greater access to medical and rehabilitation benefits to those suffering catastrophic injuries. The last set of changes made by the Ontario Government in September 2010 saw many accident benefits slashed in half or eliminated for the less seriously injured. These cuts were made in order to ensure that the system was financially able to protect those suffering from the more disabling catastrophic injuries. Therefore it was extremely alarming to see that the FSCO Review Panel has recommended new changes which will make it more restrictive for the seriously injured victims to meet the catastrophic definition.
If implemented, a large portion of these victims will be denied the designation and suffer greatly with the reduced benefits. The changes prevent the injured person from having psychological injuries combined with physical injuries when conducting the assessment. As well, they propose to get rid of the GCS score as a designator for those suffering brain injuries. The brain injury victim will no longer be able to qualify based on the early GCS score, but would rather be subject to a longer and more detailed assessment. An assessment which will delay benefits from flowing and costs significantly more.
This means that many people who suffer serious brain impairments, psychological injuries and physical injuries will be denied access to meaningful benefits in the future. The funds normally spent to get the seriously injured victims better or allow them to live with dignity will simply remain within the insurance companies. Of course, this will in turn increase the profitability of the insurance industry and put higher demands on the public health system.
However, the panel is only the first step in the review. The recommendations are not yet law. FSCO and the Government also requested submissions from the legal and medical communities. The deadline of May 13, 2011 has now passed. The response by these communities has been loud and clear. The recommendations are premature, flawed and ought not to be implemented.
A panel of prominent medical specialists in field of traumatic injuries have taken objection to the recommendations. This panels’ review was endorsed by the Alliance of Community Medical and Rehabilitation Providers of Ontario. The medical outcry is of no surprise, since the recommendations now being made are at complete odds with a 2001 Medical Panel Review. The September 2001 Review was supported by the insurance, legal and medical communities.
The major legal organizations have also stood up and indicated that these recent recommendations ought not to be implemented. They include the Ontario Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.
Based on the resounding objection, one can not imagine the Government giving any weight to the proposed recommendations. What is interesting is that in the submission made by the Alliance, they understand that over half of the panel making these recommendations had been at one time consultants with the Insurance Bureau of Canada.
What is really driving these recommendations?
Voice your Opposition to the Panel’s Recommendation and put people before profits. Send an email to your local MPP today before it is too late!
From today’s Toronto Star:
Moved by the stories of Canada’s wounded soldiers who’ve come home only to be forced to fight the federal government for benefits, Ontario’s trial lawyers say they’ll represent injured veterans for free.
And in Ottawa, sources tell the Star that the Liberals will present legislation Tuesday that, if passed, would elevate the Office of the Veterans’ Ombudsman so that it reports to Parliament, and not the minister of national defence, as is currently the case.
A recent Star series entitled Our Wounded Warriors exposed the fight Canada’s 1,500 injured soldiers — many disabled and traumatized after serving in Afghanistan — face when they return home.
The 1,100-member Ontario Trial Lawyers Association told the Star it is astounded by the “hurdles, the runarounds and the hardships” Canada’s veterans face when they try to collect federal military service and disability benefits.
“These veterans fight for our country and they really should not have to fight for these benefits,” said lawyer Patrick Brown, chair of the new initiative called Trial Lawyers for Veterans.
“If we can help out, we will,” said Brown. “The commitment from our volunteers is to offer free services. It is all pro bono.”
After suffering devastating injuries from roadside or suicide bombers, missile attacks, vehicle rollovers or gunshot wounds, the veterans are often stunned when they find themselves battling Ottawa for money, for a job and for respect.
The Star series, plus a suggestion from lawyer and mediator Paul Torrie, prompted the executive of the association to ask its members if they would consider helping the injured soldiers. Trial lawyers specialize in disability claims, injuries and fatalities.
Association president Dale Orlando said the response from the province’s lawyers was “remarkable.”
“We had all read the stories in the Star, so we had a little bit of background, and we did a little bit of investigating and we did find that Canadian veterans — to whom we all owe a debt of gratitude — were having to navigate a maze of government red tape in order to receive compensation,” Orlando said.
“We heard some horror stories about the road blocks they were facing.
“We thought, that is what we do in our day-to-day jobs — fight for victims so they do receive fair compensation. There was a natural fit for our organization.”
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After September 1, 2010, car insurance companies and brokers across Ontario will be presenting consumers with new choices for their auto insurance renewals. A daunting process is ahead. The insurance system in Ontario is one of the most complicated systems in North America.
Even though car insurance is a major budgetary item for many families, many consumers are unfamiliar with the coverage they actually have. After September 1, consumers will be given a number of choices as to amount of benefits they wish to purchase. By giving such a choice, the intent was to give them a break on premiums being paid.
The new basic auto policy being sold contains far less benefits than what existed before September 1. With benefits being drastically reduced, one would of course expect to see some significant reductions in how much one has to pay in premiums.
Therefore it is absolutely critical that each consumer ask their insurance company and brokers what are they buying and at what price. Like shopping in a supermarket, each item ought to have a price tag. Read more of this article »
[This is the fifth of a five part series by Patrick Brown on upcoming changes to auto insurance]
Injured accident victims will have a significant amount of their benefits reduced due to assessment costs. Despite the dramatic slashing of benefits reported in my previous blogs, consumers will also face further reductions based on the fact that the cost of assessments will come out of the amount of benefits available.
For example, if a consumer is injured in a car accident and the injuries are not considered to be catastrophic, they presently have $100,000 in benefits for medical and rehabilitation treatment. Any assessment costs to obtain the benefit are over and above the $100,000.
Under the new standard policy without buy ups, the consumer will only have $50,000 available in benefit dollars. That $50,000 includes assessments costs. Therefore, if $5,000 is paid for an assessment to obtain the benefit, then the amount available to the injured person is reduced down to $45,000. Read more of this article »
[This is the fourth part of a series by Patrick Brown on upcoming changes to Ontario's Auto Insurance Laws]
Starting September 1, 2010, many family members who provide basic care needs to their injured family members will be cut out from receiving any compensation for these essential services. The new law eliminates any benefits going to a family member who help the disabled family member unless they show they suffered an “economic loss” because of it.
This will have a devastating impact on families who chose to have family members look after their severely injured loved ones. The new law was passed at the request of the insurance industry. It will force families to use outside agencies. Right now for instances, if a family member is hit by a car and suffers serious injury to the extent they can no longer dress, bathe or feed themselves, a benefit is available up to either 3,000 or 6,000 per month so that other families members can help. Under the new system, this funding will stop unless mom, dad or sibling can show they lost money somehow [i.e. they have to quit work or miss work without pay]. The only way to access the benefit is to have a third party care agency come in and provide the services. Read more of this article »
One of the most common ways to settle a lawsuit is for the parties to attend a mediation. In Lynne Boulanger’s lawsuit against The Great-West Life Assurance Company, the parties did exactly that. At the end of the mediation, their lawyers drafted a “Settlement Agreement”.
As part of the Settlement Agreement, Ms. Boulanger agreed to sign a release “in a form reasonably satisfactory to counsel for both sides.” At the mediation, Ms. Boulanger read or had the Settlement Agreement read to her and understood its contents.
About a month after the mediation, Ms. Boulanger asked her lawyer to get Great-West Life to approve the release of settlement funds and the reinstatement of her long-term disability benefits, while the parties worked out other issues in the agreement. Great-West Life agreed.
Shortly afterward, Ms. Boulanger had a falling out with her lawyer, and went on to represent herself. She took the position that the claim had not been entirely resolved and did not sign the release. Specifically, she alleged that the issues of punitive damages and damages for mental distress still needed to be resolved.
Great-West Life brought a motion for an Order dismissing the lawsuit.
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Under the Statutory Accident Benefits Schedule (SABS), a person injured in a car accident in Ontario is entitled to receive a weekly income replacement benefit for two years if he or she is unable to perform his or her own occupation.after two years, the injured person is only entitled to receive an ongoing income replacement benefit if the injured person is completely unable “to engage in any employment for which he or she is reasonably suited by education, training or experience.”
In the recent decision of Burtch v. Aviva Insurance Company of Canada, the Ontario Court of Appeal was asked to articulate the proper test for income replacement benefits more than two years after an accident. Specifically, it was asked to consider whether an injured person is considered able to engage in employment if there is job that the injured person is not currently qualified for but is capable of qualifying for.
The Court of Appeal held that it is not necessary for the injured person to the formally qualified and able to begin work immediately for alternative employment to be considered a reasonably suitable alternative. A job for which the injured person is not already qualified may be a suitable alternative so long as “substantial” upgrading or retraining is not required.
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The case of Fernandes v. RBC Life Insurance Company is a reminder of the need to be completely honest and thorough when completing applications for insurance coverage. Where an insured is anything less than completely honest, the consequences can be severe.
Avelino Fernandes worked as a rough carpenter. Mr. Fernandes bought a policy of long-term disability insurance with RBC Life Insurance Company in November 2000. In approximately January 2001, he became disabled from acute meningitis and was unable to return to his work as a rough carpenter. He applied for disability benefits and RBC denied his claim. RBC stated that Mr. Fernandes’ policy of insurance was void because he had made misrepresentations and failed to disclose important medical information on his application. Mr. Fernandes sued RBC for payment of his benefits. At trial, Madame Justice Susan Chapnik found that the application required Mr. Fernandes to disclose the identity of his attending physician, his consulation with that physician four or five months before the date of the application for lumbar pain, and his attendances and treatment from an orthopaedic surgeon on several occasions from 1998 to 2000. Justice Chapnik concluded that Mr. Fernandes failed to disclose and, in some instances, misrepresented facts relating to each of those matters. He dismissed Mr. Fernandes’ claim against RBC.
Mr. Fernandes appealed to the Ontario Court of Appeal. Read more of this article »