• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

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May 29, 2019

Auto Insurance Changes in Ontario 2019 – Personal Injury Law

2019 is bringing sweeping changes to auto insurance coverage throughout Ontario. While some of the changes were discussed during the previous year, more are in the works as of April of this year. In the event you are involved in an auto accident, the proposed changes will impact how your personal injury lawyer represents you. 
 
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Ontario raises speed limits to 110 km/h for pilot program

The Ford government, looking at ways to get people moving quicker across the province, recently announced a pilot project to review speed limits on 400 series highways. 
 
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Ontario government seeking to insulate itself from lawsuits

Buried within the Ontario government’s April budget is a new Crown Liability and Proceedings Act that threatens to severely restrict our ability to sue the provincial government. 
 
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18-003314 v Wawanesa Mutual Insurance Company, 2019 CanLII 43877 (ON LAT), <http://canlii.ca/t/j0cc7  

   [3]        The applicant was deemed to be catastrophically impaired in 2016, and as a result is entitled to claim a higher level of benefits.

[30]        I also found the evidence of the applicant’s rehabilitation team with respect to his need to be admitted into a facility for substance abuse inconsistent. Mr. Tamir testified that institutionalization will cause isolation and impede the applicant’s progress within the community. I found credibility issues with this testimony as it was contradictory to what the rest his rehabilitation team recommended.[10]

[31]        In addition, I found the evidence of Ms. Ali, a representative from Medex problematic. Medex has been providing PSW services to the applicant from November 2017 to present. Significantly, Ms Ali testified that Medex was not aware that the applicant had psychological issues or problems with substance abuse until 10 months after Medex started providing service. Furthermore, the PSW assigned to care for the applicant had been certified three months prior to providing PSW services and had no training dealing with people with psychological issues.[11] Following an incident in September 2018, the PSW had to be switched as she did not know how to cope with an incident involving the applicant being intoxicated. No further details were provided with respect to this incident.

[32]        In my view, it is noteworthy that the PSW hired to care for the applicant was not aware of his suicidal ideations, substance abuse or psychological issues. In my opinion, this lack of knowledge and communication does not support an urgent need for 24-7 supervision. Moreover, Medex is currently charging the applicant $5,670.00 per month for six hours of ACBs a day.[12] The maximum payable under the Schedule is $6,000.00 per month. I find that the rates charged by Medex would not provide the applicant with 24-7 supervision. This is also acknowledged by Ms. Diamond’s report dated April 21, 2017.[13]

Rates Charged Exceed the Guideline Rates:

[50]        The Guideline sets out the maximum hourly rates insurers are liable to pay for each level of care on the Form 1 to calculate an individual’s maximum monthly entitlement.[20]

[51]        The respondent submits and I agree that the hourly rate charged by Medex exceed the hourly rates allowed by the Guideline. Much was made by the respondent about the service contract that Medex entered into with the applicant. Medex had the applicant sign a service contract which included the following:

                        a)      The applicant agreed to a lien to be assigned to Medex on any future settlement claim or judgment as a result of the accident in the event that payment of its invoices were refused by the insurance company; and

                        b)      They charged him a flat rate of $35.00 an hour because he is catastrophic.

[52]        From January 2018 to present, Medex has submitted invoices to the respondent in the average amount of $5,670.00 per month for 6 hours of service a day which is above the Form 1 amount in effect at that time and the rates in the Guideline.

[53]        While I find the actions of Medex concerning, the issue regarding whether the clinic complied with ethical standards is not before me. The respondent submitted 16-001063 v. Belair Direct Insurance Company2017 CarswellOnt.13605, in which the Adjudicator went through the complex exercise of breaking down the time spent by the service provider under each level of care to determine the quantum of ACBs incurred in accordance with the levels of care and rates provided by the Guideline.[21] There is not enough evidence before me to undertake such a task as the service provider’s daily logs do not allocate the hours worked between the three levels of care.

[54]        The respondent also submits that a lack of invoices to show expenses incurred and invoices which do not provide a detailed breakdown of services rendered can disentitle an applicant to an ACB. It proposes that the invoices submitted by the applicant do not provide a detailed breakdown and consequently I should make a determination that the services were not incurred. For the reasons that follow, I disagree with the respondent.

[55]        First, I found the case law relied upon by the respondent distinguishable. The respondent relied on 16-001063 v. Belair and 17-002957 v. Aviva Insurance Canada, 2018 CarswellOntario 13674In 16-001063, no invoices were submitted for a specific time period and the Adjudicator determined that the ACBs had not been incurred. In 17-002957, the Adjudicator determined that the invoices did not specify or itemize the services provided. Consequently, the Adjudicator was unable to determine whether the goods and services were received. What is unclear to me is what evidence the Adjudicator had before him to make that determination. In the matter before me, the applicant has submitted invoices from January 2018 to October 2018. The applicant has also submitted the service provider’s daily activity logs which list the services provided on a daily basis. The only thing missing from the log is the amount of time the PSW spent on each task. I find the evidence before me is sufficient for me to conclude that the services have been incurred for the time-period claimed.

[56]        Second, the Schedule is consumer protection legislation. In my view, the applicant should not be penalized because of the service provider’s disregard for the maximum rates payable under the Guideline or inadequate invoicing. Further, the respondent could have requested a more detailed breakdown of the services provided and no evidence was submitted that it did so. In addition, it paid for the invoices of AGTA which charged above the Guideline rates and also did not breakdown the services provided.

[57]        Finally, while I do not have the authority to increase the hourly rates payable under the Guideline, I find that sections 19 (1) and (2) of the Schedule permit me to approve incurred ACBs up to the maximum amount of the Form 1 which I have determined to be $3,047.29 per month.

[65]        The respondent relied on the IE report and testimony of Dr. Paitich, orthopaedic surgeon. Dr. Paitich opined that the applicant has achieved maximum medical recovery and that further treatment will provide no benefit to the applicant. In Dr. Paitich’s view, further physiotherapy will only make the applicant dependent on facilities which will impede his recovery. Dr. Paitich testified that, although the applicant has reached maximum medical recovery, he will continue to have ongoing symptomatology and simply stretching with a home exercise program is sufficient.

[66]        Dr. Patich submits that the applicant has had four-to-five years of supervised physiotherapy and that the treatment was passive in nature. The applicant had a further twelve months of active treatment which focussed on improving his range of movement. In Dr. Paitich’s opinion this is well beyond the time period for recovery for someone with the applicant’s orthopaedic injuries. Dr. Paitich contends that the applicant’s fractures have all been anatomically reduced (which means put back together with plates and screws). As a result, his anatomy has been restored to normal.

[67]        While I respect Dr. Paitich’s opinion as that of an orthopaedic surgeon, the evidence of the applicant’s service provider supports that improvements have been made by more active physical rehabilitation. Furthermore, the applicant’s testimony and the progress notes of the clinic also demonstrate that the treatment has helped relieve the applicant’s pain. As already noted, the case law contradicts Dr. Paitich’s opinion that continued treatment is justified if it relieves pain. In addition, Dr. Paitich has only seen the applicant three times for the purpose of conducting assessments, whereas the service provider has worked with him on a weekly basis and has noted progress. Therefore, I give Mr. Bhatt’s opinion more weight.

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