Fabio Longo Founding Partner, Trianta Longo LLP David Bertschi Founding Partner, Bertschi Orth Solicitors and Barristers LLP

Transcription

1 Fabio Longo Founding Partner, Trianta Longo LLP David Bertschi Founding Partner, Bertschi Orth Solicitors and Barristers LLP

2 SABS Framework Mandatory coverage for all insurance policies for motor vehicle accidents Different than Tort: based on contract of insurance No Fault Benefits: paid regardless of if you are at fault in the MVA Claiming against own insurer (first party) instead of third party Insurer has a duty of good faith Causation: But For vs. Material Contribution Specific Benefits specific tests from legislation

3 SABS Assessments Provisions for IEs under SABS (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

4 SABS Assessments Requirements for Expert Reports at the LAT (Rule 10.2 of LAT Rules of Practice and Procedure): (a) The name and contact information of the expert witness; (b) A signed statement from the expert, in the Tribunal s required form, acknowledging his or her duty to: (i) Provide opinion evidence that is fair, objective, and non-partisan; (ii) Provide opinion evidence that is related to matters within his/her area of expertise; and (iii) Provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue; (c) The qualifications of that expert witness, referring specifically to the education, training and experience relied upon to qualify the expert; (d) A signed report that sets out the instructions provided to the expert in relation to the proceeding, the expert s conclusions, and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal; and (e) A concise summary stating the facts and issues that are admitted and those that are in dispute, and the expert s findings and conclusions.

5 SABS Assessments Questions Before Initiating an Assessment Understanding what you ve been retained to assess Do you have the medicals? Do you understand the question(s) being posed? Will a paper review suffice in the context of what is being assessed?

6 Goodbye FSCO, Hello LAT Changes from FSCO to the Licence Appeal Tribunal (LAT) As of April 1, 2016, all disputes go to the LAT $ filing fee for LAT Application No costs awarded for expert reports or appearances at LAT Legal costs are only awarded where a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith May result in written hearings, or filing reports instead of in person experts

7 SABS: The Minor Injury Guideline (MIG) Definition: minor injury means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries. MIG claims are limited to $3, for medical/rehabilitation benefits If discharged from the MIG, limits increase: Accidents before June 1, 2016: $50,000 med/rehab and $36,000 attendant care Accidents after June 1, 2016: $65,000 for combined med/rehab and attendant care

8 MIG Exclusions: Pre-Existing Conditions Pre-existing conditions can remove the insured from the MIG: If the insured person s impairment is predominantly a minor injury but, based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the SABS or is limited to the goods and services authorized under this Guideline. Compelling evidence is to be provided using the OCF-18 Treatment and Assessment Plan

9 Chronic Pain: MIG or Not? Arruda and Western Assurance (2015 FSCO decision): chronic pain syndrome removed the claimant from the MIG Ali v. Certas Direct (2016 FSCO decision): found chronic pain was not MIG. Insurer s IEs were rejected because the assessor did not comment on chronic pain in either of 2 IEs Ali and Ferozuddin v. Certas (2016 FSCO decision): found that chronic pain was not a clinically associated sequelae and was not MIG Ahmed and Unifund (2017 FSCO decision): because no medical professional diagnosed chronic pain, applicant was kept in the MIG despite evidence of ongoing pain complaints TS and Aviva (2017 LAT decision): because there was no evidence whether or not the chronic pain syndrome is a sequela to MIG injuries, claimant not removed from MIG

10 MIG Exclusions: Others Other Impairments that Remove Claimants rom the MIG: Psychological impairments Concussions Complete tears (but not partial tears)

11 SABS: Income Replacement Benefits (IRB) Income Replacement Benefits Test (pre-104 weeks): as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment Test (after 104 weeks): the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

12 SABS: Income Replacement Benefits (IRB) Case Law: Wigle and Royal Insurance, 1996 FSCO decision (upheld on appeal) The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background. Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative. In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how. The primary focus is on an applicant's functional limitations; however, job market considerations are relevant in determining suitable employment.

13 SABS: Income Replacement Benefits (IRB) IRB: Complete Inability Must be Considered in a Realistic Context It is not only the ability to perform the tasks of employment, but also the duration of the ability to perform the task ( v Old Republic, 2016 LAT decision) Must consider whether the insured is able to perform the tasks on an ongoing basis, and not each task in isolation (Arruda and Western, 2015 FSCO decision) For alternative employment (such as light/sedentary jobs), must consider reasonable hours/productivity: whether the insured would be able to consistently attend and sustain a reasonable number of hours of employment (Mack and Kingsway, 2007 Arbitration decision)

14 SABS: Non-Earner Benefits Non-Earner Benefits Test from SABS 2010: The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident;

15 Non-Earner Benefits Test for Non-Earner Benefits What does this mean? The Court of Appeal provided guidance in Heath v. Economical (2009) but this is not a laundry list : The insured s pre-accident and post-accident activities and life circumstances need to be compared over a reasonable time period. Greater weight will be assigned to the activities that were more important to the claimant. Where the claimant experiences pain, the degree of pain involved in performing activities must be taken into consideration. Lastly, one must determine whether the accident significantly contributed to the continuous impairment that the claimant sustained. The accident doesn t need to be the only cause of disability.

16 Non-Earner Benefits Changes as of June 1, 2016 Prior to June 1, 2016: Non-Earner Benefits were not payable for first 26 weeks after MVA Payable thereafter at $185.00/week for life (for as long as the claimant meets the test) Only payable if claimant is at least 16 years old Increased to $ after 104 weeks for people enrolled in full-time education at the time of the MVA, or completed education less than 1 year before MVA After June 1, 2016: Non-Earner Benefits aren t payable for the first 4 weeks after an MVA Payable thereafter at $185.00/week for first 104 weeks (2 years) after MVA No increased NEB if enrolled in education, only payable if claimant is at least 18 years old

17 SABS: Catastrophic Impairment Limits Changes as of June 1, 2016 Prior to June 1, 2016, Insured had a separate $1,000,000 limit for attendant care for a catastrophic impairment. New CAT limits have combined med/rehab and attendant care limit of $1,000,000. Non-catastrophic claims now only available for 5 years instead of 10 years

18 SABS: Catastrophic Impairment What does it mean Catastrophic is a legal definition, to be decided by the trier of fact (the LAT Adjudicator) Based on legal tests from the SABS 2010 Can be found Catastrophically Impaired on the following basis: paraplegia/tetraplegia, amputation/loss of use of a limb, loss of vision (both eyes), traumatic brain injury, mental/behavioural disorder, or a combination of physical and mental/behavioural disorders (Whole Person Impairment) To better understand Catastrophic Impairment and CAT assessments and changes to the CAT tests, attend the next CSME/CAPDA C-CAT Conference and Certification Program

19 SABS: Medical/Rehabilitation Benefits Things to Remember Test for med/rehab benefits: all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident Address the OCF-18 in an assessment: OCF-18 Lists the injury/sequelae OCF-18 lists impairments/limitations Address the Goals and Functional Goals listed in the OCF-18 Goals: pain reduction, increase in strength, increased range of motion, other(s) Pain relief as a goal: Violi and General Assurance (2000 FSCO Appeal): Pain relief is a legitimate medical and rehabilitation goal, and may even be the only goal for treatment. Pedisic and State Farm: 2009 decision (upheld on appeal): ordered over $50, of massage therapy paid due to pain relief (up to 3 times per week, 5 years post-accident)

20 WSIB Legislation WSIB as a Safety Net Causation in WSIB: It must be established that the worker s injury resulted from an accident that arose out of and in the course of employment, or that the worker suffers from an occupational disease that occurred due to the nature of employment. WSIB as a Shield Under s. 28 of the Workplace Safety and Insurance Act (WSIA), a worker for a Schedule 1 employers are not entitled to commence an action against any Schedule 1 employers for any workplace injuries/disease A worker for a Schedule 2 employers are not entitled to commence an action against their own employer A worker can make an election under s. 30 to commence an action instead of making a WSIB claim

21 WSIB: Determining the Value on a Meat Chart Employer-requested health examinations: occur at the request and expense of the Employer Degree of Permanent Impairment Assessments Requested only when the injured worker has reached maximum medical recovery (MMR) Requested by the Board The Appeals Tribunal can request a clinical opinion from a medical consultant on causation, mechanism of injury, relationship between the diagnosis and history, effects of pre-existing conditions or non work-related conditions To determine the degree of "impairment" for Non-Economic Loss (NEL) awards, registered nurses (NEL Clinical Specialists) use a "legislated rating schedule", the American Medical Associations Guides to the Evaluation of Permanent Impairment (AMA Guide) 3rd Edition. NEL benefits are paid to recognize that, beyond the wage loss, one has suffered a physical, functional or psychological loss resulting in a permanent impairment.

22 Determining WSIB Claims Things to Remember: Refer to WSIB Medical Discussion Papers available for most conditions For Non-Economic Loss (NEL) Benefits, refer to WSIB Manual for Determining Permanent Impairment What must be included in expert reports (as per the WSIAT Practice Direction: Expert Evidence): A copy of the expert report, signed Instruction letter for the expert report, including questions asked Expert s C.V. listing education, training or expertise What should be included for an effective expert report: level or degree of impairment Range of Motion(where applicable) Impacts of Daily Living Causation and direct relatedness of diagnosis/diagnostic tests to occupation/work environment Oral testimony of experts at the Tribunal is rare

23 WSIB Legislation Some Factors the WSIAT (WSIB Tribunal) Considers when Weighing Medical Evidence (from the WSIB Administrative Practice Document: Weighing of Medical Evidence ): Did the health professional have all the relevant medical records, including diagnostic and radiological reports, available to review in order to obtain a complete picture of the worker s condition, a full understanding of the worker s relevant medical history, and the injury process involved? What is the timeliness of the medical examination in relation to the issue at hand? What is the degree of the health professional s knowledge of the worker s past and present medical history? How does this impact the weight of the medical opinion at issue? What is the extent of the health professional s knowledge and understanding of the nature of the worker s work or employment environment in relation to ongoing impairment?

24 WSIB Legislation More Factors the WSIAT (WSIB Tribunal) Considers when Weighing Medical Evidence (from the WSIB Administrative Practice Document: Weighing of Medical Evidence ): What is the expertise of those offering an opinion, relative to the issue? Is reference made to relevant medical literature to support the opinion and recommendations, where appropriate? Is the evidence/opinion provided based on an examination of the worker? Does it include the evaluation of the worker s complaints and symptoms relative to the clinical findings? Is the opinion well explained and the conclusion logical? Are clinical findings provided? Do the clinical findings support the opinion?

25 Disability Insurance (STD/LTD) Similar to SABS, also based on contract law Test varies depending on the wording of the policy Insurers owe a duty of good faith to their insureds Unlike SABS, which often use in person multidisciplinary assessments, there s an increasing trend for paper reviews on LTD files Change of definition: own occ vs any occ tests Some insureds (often professionals) just have the own occ test

26 Things to Watch Out For on LTD Files Whether a medical assessment was a file review or in person examination Know your college requirements in relation to consent and providing professional opinions without an in person assessment Check the policy wording for the precise test Answering questions without providing a report? The impact of treating practitioner s opinions The need for ongoing/updated medical records Insufficient evidence to support disability

27 Other Pertinent Regional Legislative Frameworks CPP-Disability: To qualify for CPP Disability Benefits, the disability must be both severe and prolonged and prevent the applicant from being able to work at any job on a regular basis Severe means that you have a mental or physical disability that regularly stops you from doing any type of substantially gainful work Prolonged means that your disability is long-term and of indefinite duration or is likely to result in death

28 Tort (MVA): Surpassing the Double Hurdle What are the Threshold and Deductible? In Ontario, the Insurance Act applies a deductible to all awards for pain and suffering arising from an MVA unless damages for pain and suffering are over $126, or if the plaintiff died as a result of the MVA Deductible: currently $37, (indexed to inflation) The Insurance Act also applies a threshold for MVA cases. Failure to meet the threshold will bar claims for non-pecuniary damages, but not for income loss claims. Threshold: a permanent serious disfigurement; or a permanent serious impairment of an important physical, mental, or psychological function Deductible and Threshold don t apply to non-mva injuries

29 Tort (MVA) Threshold What needs to be addressed in a Threshold report? Reports for the threshold should address the following: The nature of the impairment The permanence of the impairment The specific function(s) that are impaired; and The importance of the specific function to the person Whether the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

30 Recent Cases Parra v. Laczko 2016 Ontario decision Threshold Case: Jury found damages of $15, ($10, pain and suffering, $5, future med/rehab) Damages reduced to $0 due to deductible and collateral benefits Judge found that chronic pain condition impaired the plaintiff s ability to work Judge found the plaintiff still met the threshold despite no damages payable

31 Recent Cases Moore v. Getahun 2015 Ontario Court of Appeal decision Trial Judge disapproved of counsel reviewing a draft report with the expert and ordered disclosure of the draft report and all communications On appeal, Court of Appeal said that draft reports or notes of interactions between counsel and the expert should not be produced, unless there is a factual foundation to support that counsel improperly influenced the expert The Court of Appeal approved of consultation/collaboration between experts and legal counsel, and the process of reviewing draft reports This does NOT apply to SABS or LTD cases, where a duty of good faith is owed by the insurer

32 Recent Cases Bruff-Murphy v. Gunawardena 2017 Ontario Court of Appeal decision Trial Judge allowed expert evidence of a psychiatrist despite raising concerns of the expert s independence and methodology, and that his testimony crossed the line to being an advocate for the defence. On appeal, the Court of Appeal found the trial judge did not sufficiently exclude the expert s opinion or alert the jury to the problems with the expert. The jury award was overturned and a new trial was ordered.

33 Recent Cases Bruff-Murphy v. Gunawardena 2017 Ontario Court of Appeal decision Criticism: Trial judge did not weigh the cost-benefit analysis for the expert s testimony Methodology: there was a short interview, with review of medical records done afterwards Expert never questioned the plaintiff on inconsistencies / discrepancies from the records Most of the content of the report was recitation of inconsistencies with little medical analysis Expert came dangerously close to usurping the role of the jury in assessing [the plaintiff s] credibility Concludes the expert went beyond a lack of independence and became an advocate for the defence