Independent Examinations are Often Found to be Anything But Impartial
The
Globe and Mail published an investigative report highlighting the trend of car insurance companies of engaging “hired gun” doctors to produce biased “Independent Assessments” of injured drivers’ medical conditions. The practice is real and ongoing. Arbitrators at the LAT and FSCO have called out some medical doctors and insurance companies for the practice which is ongoing. This casts further questions on the continued reduction of benefits to injured drivers by te insurance companies and proposed changes to the benefits scheme after the next election.
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Auto fraud: a cost of doing business?
Canada’s property and casualty insurance industry should do much more to fight auto insurance fraud, a senior claims representative of Canada’s second largest insurer says.
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Ontario parties are ducking the issue of public auto insurance
The Liberals and New Democrats vaguely promise to lower Ontario’s sky-high auto insurance rates. Yet for reasons of history and embarrassment, neither is promoting the obvious solution: public auto insurance.
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Liberals in Ontario are promising that they will end the insurance industry practice of setting higher premiums for drivers based on their postal code – a promise that the NDP claims was originally theirs.
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How Google-happy jurors are derailing Ontario trials
Three recent trials in Ontario have been rocked by juror misconduct connected to the internet, reviving concerns about the challenges of ensuring a fair trial in the digital age.
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Patterson v. Peladeau, 2018 ONSC 2625 (CanLII)
After eight weeks of trial, wherein liability was hotly contested, the jury began five days of deliberation on a Friday. Over the weekend, juror #1 engaged in internet legal research at his home. He found the Fault Determination Rules regulation under the Insurance Act. On Monday morning, juror #1 discussed the Regulation with the other jurors. The jury after over two hours of discussion sent questions to the judge.
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Brain Injury Grief Is Extraordinary Grief
The last time I tried to research
grief from
brain injury, I found nothing helpful. After giving up years ago, I tried again in April. I was surprised and heartened to find that brain injury grief was being recognized at long last. Skimming articles from the US and UK validated my belief that brain injury grief is a different and difficult beast from other kinds of grief.
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B.C. decision links mild TBI to plaintiff’s early onset dementia
In a rare move, the Supreme Court of British Columbia awarded a man almost $1.3 million in damages arising out of a motor vehicle accident where he suffered a mild traumatic brain injury which resulted in early onset dementia, Vancouver personal injury lawyer
Sean Lerner tells
AdvocateDaily.com.
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Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII), <http://canlii.ca/t/hrrxc
[10] Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found (depictions which, on their face, appear to be at odds with the plaintiff’s allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant. Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life; and photographs taken before are relevant for comparison (see: Morabito v. DiLorenzo, 2011 ONSC 7379(CanLII), at para. 5).
[11] “Where, [as here], in addition to a publicly-accessible profile, a party maintains a private Facebook profile….it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile” (Leduc v. Roman, 2009 CanLII 6838 (ON SC), 2009 CarswellOnt 843, at para. 30).
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For the reasons that follow, I conclude that the Arbitrator correctly ordered payment of medical benefits and IRBs, where the order was based upon Coachman’s complete failure to respond to Ms. Sivananthan’s claims. The order cannot be supported, where payment is based upon what the Arbitrator considered to be an improper response. The Arbitrator also erred in failing to precisely determine the amount of IRBs payable, after deducting post-accident income. Therefore, the issue of the amount of IRBs payable must be re-heard. As a result the question of whether the Arbitrator erred in amending his order to allow deduction of post-accident income is moot. The Arbitrator also erred in ordering Coachman to pay Non-Earner Benefits (NEBs) without knowing that the conditions for entitlement to payment will be met at the time when payments will become due.
The Arbitrator correctly concluded that Coachman unreasonably delayed or denied payment of the benefits that survive this appeal, therefore his order for payment of a special award stands. However, the Arbitrator erred in failing to fix the amount of the award with precision. Therefore, the question of the amount of the special award is remitted for re-hearing.
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The Arbitrator found that Coachman committed several breaches of its obligations under the Schedule, justifying a special award. He ordered Coachman to pay the highest possible special award, in an undetermined amount. He ruled that Coachman is precluded from taking the position that Ms. Sivananthan’s injuries fall within the MIG. He fixed the quantum of IRBs at $255.71 per week and he ordered Coachman to pay IRBs, from one week after the 1st accident and ongoing. The Arbitrator also ordered payment of ongoing NEBs, with the caveat that Ms. Sivananthan cannot collect the NEBs as long as she continued to receive the IRBs. The Arbitrator also ordered Coachman to pay for all of the claimed treatment, for the In-Home Assessment and for the Disability Certificate. He reasoned that Coachman is liable to pay Ms. Sivananthan her “full expenses” of the arbitration. He ordered payment of expenses, in an amount to be determined.
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The Arbitrator found the following conduct by Coachman to be unreasonable, with regard to the benefits that survive the appeal:
· Failing to use the available information to calculate weekly IRBs
· Failing to respond to the claim for IRBs
· Failing to respond to claims for treatment
I am satisfied that the Arbitrator correctly concluded that Coachman must pay a special award because of its complete failure to respond to the treatment plans that survive this appeal, and its complete failure to respond to Ms. Sivananthan’s claim for IRB. The issue of the amount of the special award is remitted for re-hearing.
A special award can only be attached to benefits owed at the time it is made. Therefore the Arbitrator’s order is rescinded as it relates to the treatment plan in the amount of $1,245.64, the treatment plan in the amount of $3,089.00, dated November 1, 2014 and the In-Home Assessment. I note that the Arbitrator made no finding that Ms. Sivananthan was in fact too ill to attend the assessment that she did not attend regarding the treatment plan of November 1, 2014. The question of entitlement to a special award regarding these benefits is remitted for re-hearing. Since nothing is payable for NEBs, no special award can flow from the Arbitrator’s findings in this regard.
