When issuing denial letter the medical and any other reasons” should be clear and sufficient – TF and Peel Insurance Company, 2018 CanLII 39373 (ON LAT 16-003316)
You may be responsible if you are texting someone who has a car accident
How-to guide for injury victims seeking legal remedies
Workers comp bars Ontario auto accident victim from suing in bizarre double-crash
In an auto accident claim involving back-to-back crashes, a woman who lost both her legs after being hit by a car is barred from suing the driver because the car that had carried her to the scene of the accident was driven by her employer.
Marrocco v. Heft, 2018 ONSC 3438 (CanLII), <http://canlii.ca/t/hsd10
The Automobile Accident Benefits Service (AABS), a division of the Licence Appeal Tribunal (LAT), is pleased to announce the official launch of AABS e-File, an online filing service for accident benefit disputes.
A sample group of participants have been using e-File during a soft launch period to test and provide feedback prior to the full implementation to the general public.
AABS e-File will be available to the general public on Friday June 15th, 2018.
The Applicant points out the incorrect actions taken by the Insurer, in that all the Insurer’s assessors including psychiatrists and the Applicant’s family doctor, claimed in their respective reports that the Applicant was unable to work. The only exception was Dr. Rashid, who issued an addendum report on August 22, 2008, at the behest of the Insurer. Now some 11 months after his in-person evaluation he changed his mind and came to a neutral conclusion due to inconclusive results, and then gave these findings a negative connotation. As such based on this one inconclusive report the Insurer terminated the Applicant’s IRB. The Applicant asserts that a second in-person assessment should have been done to clear up any ambiguities that may have led to Dr. Rashid’s inconclusive conclusion.
This set of circumstances gave rise to a preliminary issue hearing where the arbitrator found that State Farm had not followed the Schedule and made several technical breaches of the Schedule during the termination of IRB benefits.
The Applicant further argues that Dr. Rashid was unaware of the Applicant’s complete medical file. Not only were the family doctors clinical notes and records excluded, but also Dr. Gnam’s report dated September 26, 2007, Dr. Meschino’s report dated January 5, 2008 and Dr. Luczac’s report dated April 24, 2008; all of which concluded that the Applicant was unable to return to work or had a complete inability to return to work.
The Applicant points out that Dr. Luczac (psychiatrist) was one of the Insurer’s assessors for a catastrophic impairment assessment. His report was released in between Dr. Rashid’s two reports. This report concluded that the Applicant was moderately impaired and was unable to work and more importantly, makes a finding that the current motor vehicle accident was the cause of her impairment. The Applicant argues that the significance of ignoring this report was compounded when the Insurer did not continue to adjust the IRB claim even after it received a rebuttal report from the Applicant’s treating psychiatrist Dr. Meschino[5] dated December 10, 2008. Even after the condemning findings of the preliminary issue hearing arbitrator, the Insurer has not resumed adjusting the IRB claim.
The Applicant contends that the Insurer ignored the totality of the medical information which continued to be provided by various specialists, all of which concluded that the Applicant could not return to work. This list includes Almuth Weigeldt’s (treating therapist) report dated July 3, 2009[6], Dr. Mecshino’s report dated July 20, 2009[7], Dr. B. Alpert’s (IE orthopedic surgeon) report dated November 16, 2009[8], Dr. Doxey’s IE psycho-vocational report dated March 21, 2010[9], and finally Dr. Rosenblat’s catastrophic assessment report dated March 31, 2014[10].
Finally the Applicant raises the question: how could the Insurer agree to admit the Applicant into an in-patient mental health treatment facility for 60 days in 2011, and not recognize that the Applicant could not work? The Applicant points to the Insurer’s reliance on Dr. Zakzanis’s inconclusive catastrophic assessment report dated July 7, 2011[11], to deny a catastrophic impairment designation. This demonstrates the Insurer’s stubborn, excessive, imprudent, and inflexible behaviour toward the Applicant. This was further exacerbated by not allowing the doctor to re-examine the Applicant in order to attain valid test results. The Applicant submits that an objective Insurer reviewing the totality of the evidence would have come to a different conclusion than State Farm did in this case.
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In my view, the Insurer relied on incomplete and inconclusive report findings for both the IRB and catastrophic impairment determination. It continued to rely on these incomplete outlier reports despite an abundance of newer contemporaneous and conclusive medical reports all reporting conclusions in favour of the Applicant. This clearly demonstrates the Insurers stubborn, excessive, imprudent, inflexible, unyielding and immoderate behaviour. In my view, this pattern of behaviour is not remedied by the normal 2% interest penalty for delay or denial of an accident benefit. The Insurer unreasonably withheld payments, hence a special award is justified.
For the reasons above, I find that the Insurer is liable to pay the Applicant a special award of 35% of the owing IRB total and its interest of 2% compounded interest.