Posted by Rikin Morzaria on February 11, 2010 under Accident Benefits, Automobile Insurance, Case Law, Disability Benefits
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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Posted by Rikin Morzaria on January 7, 2010 under Accident Benefits, Case Law, Claims Denial, Insurance Companies
“When is an expert not treated as an expert?” That was the question Ontario Superior Court judge Thomas Lederer asked in the case of Babakar v. Brown .
The Babakars were involved in a motor vehicle collision and were insured by State Farm. They applied to State Farm for accident benefits. At some point, State Farm required the Babakars to attend insurer examinations under section 42 of the Statutory Accident Benefits Schedule with psychologist Dr. Hoath, orthopaedic surgeon Dr. Kadish, and physiotherapist Mr. Diaz. Based on the reports of Dr. Hoath, Dr. Kadish and Mr. Diaz, State Farm terminated the Babakars’ accident benefits.
at the examination for discovery of State Farm’s representative, the Babakars’ lawyer askedState Farm to make the following inquiries of Dr. Hoath, Dr. Kadish, and Mr. Diaz:
1. To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.
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Posted by Rikin Morzaria on November 3, 2009 under Accident Benefits, News
Lynda Anderson suffered injuries in a motor vehicle accident in 2001. She sued the at-fault driver and in March 2008, she settled her lawsuit.
In June 15, 2005, Ms. Anderson suffered additional injuries in a slip and fall. She started a second lawsuit against the owner and occupier of the property where she fell. At her examination for discovery in the slip and fall action, the defence lawyers asked that Ms. Anderson produce copies of the settlement documents from her 2001 MVA. Ms. Anderson refused to produce these documents. She agreed to produce her medical records and reports, but felt that the settlement documents were irrelevant. The defendants brought a motion to compel Ms. Anderson to produce the information.
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Posted by Rikin Morzaria on October 15, 2009 under Accident Benefits, Case Law, Insurance Companies
In the recent decision of Close v. Dominion General Insurance, the Court of Appeal overturned the decision of the trial judge, Justice Mary Marshman.
Justice Marshman had ruled that the limitation period for Gordon Close to claim that Dominion had incorrectly calculated his Income Replacement Benefit (IRB). She also ruled that Dominion was not required to pay post-judgment interest on the judgment it owed to Mr. Close.
The Court of Appeal reversed both findings. On the issue of IRBs, the Court said that Mr. Close’s limitation period didn’t start to run until Dominion became aware of the error and refused to pay the amount that Mr. Close was paying.
It also held that the Statutory Accident Benefits Schedule required insurers to pay post-judgment interest as well as pre-judgment interest, and the trial judge had no discretion to hold otherwise.
