Archive for March, 2012

Ontario Budget Revealed: What it Means for Personal Injury Law

Wednesday, March 28th, 2012

On March 27, 2012, the Ontario provincial budget was released. This report includes changes to the definition of catastrophic impairment and enforcement to reduce auto insurance fraud.

The Insurance Bureau of Canada is of course applauding the fraud measures proposed in the budget and the administrative penalties recommended.

On September 1, 2010 the government made major changes to Ontario’s auto insurance system. The government feels that premiums are stabilizing for drivers across Ontario. Building on the success of these reforms, the government wishes to take action to tackle fraudulent and abusive practices, base insurance benefits on scientific and medical principles, and ensure its regulator continues to identify and respond to new and emerging issues.

Auto Insurance Anti-Fraud Task Force

The government is committed to combating insurance fraud and continues to support the Auto Insurance Anti-Fraud Task Force who issued an interim report in December 2011 and the government has already:

  1. enhanced auto insurance fraud training for police officers;
  2. started a pilot project using the Health Claims for Auto Insurance database, which will allow health care providers to flag clinics that are misusing their credentials and cut down on identity theft;
  3. amended regulations to ensure that treatments are provided as invoiced;
  4. issued a Superintendent’s Guideline to ensure that insurers are not being involved for medical devices at a significantly higher than market rate;
  5. encouraged the industry to communicate the issue of fraud across a number of media platforms, and measure the current state of consumer engagement and awareness on the issue; and
  6. required CEOs of automobile insurers in Ontario to annually attest that their accident benefit cost controls are effective and that legitimate claimants claimants are treated fairly.

The Task Force recommended that the government should provide that the Superintendent of Financial Services with the power to impose administrative monetary penalties for contraventions of legislation and regulations. The government is proposing amendments that will provide the authority in order to enhance regulatory effectiveness.

Scientific and Evidence-Based Approaches:

What does the government mean by basing insurance benefits on scientific and evidence based approaches? This is a reference to accident benefits of course.  The report mentions that scientific and medical knowledge with respect to identifying and treating “a variety of injuries” has improved “remarkably” over the past decade and states that “The government will ensure, where possible that insurance regulations reflect the most relevant science on identifying and treating injuries from automobile accidents”.  This apparent clarity will help minimize disputes over benefits and ensure people get the treatment they need and ensure treatments are based on medical evidence.

The report goes on to say that newer scientific and evidence-based approaches can be applied to serious and minor MVA injuries.

There are recommendations that a new Minor Injury Guideline be developed.

The government received the Superintendent of Financial Services Report with respect to Catastrophic Impairment (based on the work of an expert panel) and will move forward to propose regulatory amendments in this area.

The report is to be made public in the coming weeks. The question is, will the report mirror what the expert panel said? Will Superintendent Phil Howell’s report differ? Two big concerns that the Plaintiffs’ bar has is whether or not the combining of physical and psychological impairments will be allowed to determine catastrophic determination and the use of the Glasgow Coma Scale. To learn more about the proposed changes, refer to our earlier post about the changing definition of catastrophic impairment found here.

Modern Insurance Regulation:

FSCO, the Financial Services Commission of Ontario is to modernize to meet current challenges. The government proposes to enhance FSCO and its regulation of the insurance sector by proposing to:

  1. engage in a review of the automobile insurance dispute resolution system;
  2. strengthen the Superintendent’s authority regarding Unfair or Deceptive Acts or Practices;
  3. clarify the Superintendent’ s authority regarding rate and risk classification approvals;
  4. support a Superintendent’s review of the profit provision benchmark in auto insurance rate change approvals;
  5. work with insurers to explore the implications of voluntary usage-based auto insurance policies;
  6. harmonize the timing of statutory automobile insurance reviews; and
  7. improve solvency supervision of Ontario insurers.

The new Budget also noted the Ontario government’s intention to review and update the Insurance Act:

  1. the government is proposing amendments to the life insurance and accident and sickness insurance parts of the Insurance Act to enhance consumer protection, reduce regulatory burden and harmonize with other Canadian jurisdictions; and
  2. the government is enhancing the effectiveness of its insurance regulation by proposing amendments to give the Superintendent of Financial Services the authority to impose administrative monetary penalties in the insurance sector.

Checking in with your Insurance Needs

Thursday, March 22nd, 2012

Are you ready for life’s unexpected curveballs?

How would you manage financially if you were diagnosed with a serious illness and were unable to work? Or suffered a serious injury that rendered you unable to work?

Changing lifecycles are changing insurance needs. People are living longer, supporting adult children and are more active later in life compared to previous generations. The average life expectancy for men and women has increased. Due to medical advancements, more and more people are surviving critical illnesses.

Another change that has been happening is that people are choosing to have children later in life. Statistics Canada has revealed that more women are giving birth in their 40s.

What does this mean? Critical illness insurance is becoming more and more important. Why? It protects a family’s income and savings.  It protects a business person’s income and savings.

Having adequate insurance is important if you are self-employed or have a family or are planning to start a family. The sooner you obtain insurance, the better your premiums will be given your age, and it reduces the risk of being declined for coverage due to health issues.

To read more about the changing need for insurance, read the press release, “70 is the new 50″  issued by TD Insurance found here.

A recent article in the Globe and Mail, called “Lessons learned from a tragic game of touch football” also visited the necessity of critical illness and financial preparedness.  Changing work and family dynamics have made protecting income and finances necessary, especially as the health-care system deals with an aging population that is living longer and the federal government discusses possible changes to Canada Pension Plan and Old Age Security.

 

There are growing numbers of people who are self-employed or who have contract jobs, or are employed without benefits and insurance plans that supplement or protect their income and assets.

Critical illness insurance is a very important product. It’s been available in Canada since 1996. Consider the following:

  1. 1 in 3 Canadians will develop cancer
  2. 1 in 2 heart attack victims is younger than 65
  3. 3/4 of the 50,000 Canadians who suffer from a stroke annually will be left with a disability

Critical illness insurance pays a lump sum amount if the policy holder is diagnosed and meets the survival period. The general idea is that the lump sum covers the amount of income that may be lost while the person is off work for treatment or recovering. It can also offset the cost of private nursing care, attendant care, medications or other such needs.

Aaron Waxman & Associates handles critical illness insurance claims. In the event that your claim is denied, contact us for a free consultation.

 

 

 

 

 

Social Media and Personal Injury Cases: LTD Benefits

Tuesday, March 13th, 2012

We recently blogged about social media and personal injury cases. Insurance companies are using social media as a means of surveillance to try to find out more about a claimant’s character, and their credibility.

At discoveries, defence lawyers are asking for plaintiffs to produce their Facebook photos, or preserve their accounts. The requests for access to plaintiffs’ and claimants’ social media sites are not going to disappear as more and more people are joining these sites.

But how much do these social media sites tell about a person??

Consider a Quebec woman’s fight with her long-term disability insurer made headlines late in 2009. The headlines were essentially “Depressed woman loses benefits over Facebook photos”.

Nathalie Blanchard, an employee of IBM, went on sick leave for major depression and was being paid long-term disability benefits through Manulife Financial for a year and a half. She attended therapy, took prescription medications, and then her doctor suggested that she take a trip and try to enjoy herself, so she booked a trip, she notified her insurance company and she took pictures of her trip.

She posted those trip pictures on Facebook. It turns out Manulife had their eye on her Facebook account and noticed her photos and determined she did not appear depressed in her photos.

When her benefits cheques stopped coming, she called Manulife and asked why. Manulife described her Facebook pictures to her and told her that is evidence she is no longer depressed. She doesn’t understand how Manulife accessed her photos when her profile is private.

She retained a lawyer to sue Manulife and have her benefits restored, her lawyer felt Manulife’s actions were inappropriate.

It is important to consider the fact that depression and mental illness aren’t visible illnesses like physical injuries. A picture doesn’t necessarily capture a person’s state of mind.

Manulife felt that Blanchard was well enough to work based on her pictures.

Manulife would not comment specifically on Blanchard’s case but said they would not deny or terminate a valid claim based solely on information found on sites such as Facebook. A spokesperson for the Canadian Life and Health Insurance Association said “We can’t ignore it, wherever the source of the information is..”

The case is before the courts now.

 

Recent Developments in Brain Injury Research

Sunday, March 4th, 2012

Brain Trauma might be more common than expected according to the Mayo Clinic. In a recent study published in the journal Epidemiology, researchers from the Mayo Clinic applied a new system for classifying injuries to the head and found that the incidence of traumatic brain injury is likely greater than has been estimated by the CDC.

What people often fail to remember and recognize is that even mild traumatic brain injuries can affect a person’s sensory motor functions, thinking, awareness and communication.  A lot of people have gone undiagnosed.

Researchers came up with the  Mayo Traumatic Brain Injury Classification System, a new brain injury method that classifies head injuries with new categories.  The categories label patients with “definite,” “probable” and “possible” TBIs, providing a way to incorporate symptoms such as a brief period of unconsciousness or even an injured patient’s complaint of dizziness or nausea.

Researchers are finding a strong link between TBI and post traumatic stress disorder. Researchers found a causal link between mild traumatic brain injuries and PTSD. There is an increased susceptibility to developing PTSD. People who have sustained a mild TBI are also more likely to develop an anxiety disorder.

An experimental drug might limit stroke damage. There is currently only one effective treatment for stroke, which is a Tissue Plasminogen Activator TPA that can dissolve blood clots that cause a stroke. the catch is that is has to be given very soon after symptoms appear and doctors first have to make sure that the stroke itself was not caused by a ruptured blood vessel. If that was the case, TPA can make the situation a lot worse.

At the Toronto Western Hospital Research Institute in Canada, it was discovered that a drug known as a PSD-95 inhibitor could be used as a treatment for strokes. It works by blocking a key protein that leads to brain-cell death. The study has been published in the journal, Nature.

Daily doses of a drug, Amantadine, used to treat Parkinson’s disease may help treat brain injuries according to a new study. The drug was given to patients who had suffered severe brain injuries. The doctors found that the drug helped with recovery and noticed a difference between patients who were given the drug and patients who were part of the clinical study that did not receive the drug.

Amantadine was also used as a flu drug in the past. When given to patients with serious traumatic brain injuries, it was noted that far fewer patients who were given this drug remained in a vegetative state. Visible steps towards recovery was seen.

Another medication being tested as a treatment for brain injuries is Clazosentan. A TBI causes a decrease of blood flow to the cerebrum of the brain. There is a receptor in the brain called endothelin receptor A (ETrA) contributes to the restriction of blood flow as early as four hours after a brain injury. Clazosentan is thought to specifically block these receptors.

How can doctors truly diagnose a brain injury? ABC news posted an article about detecting unseen damage in the brain with traumatic brain injuries. Doctors often miss brain injury damage that doesn’t show up on scans. Scientists are in the process of testing a tool that lights up the damage caused to the brain’s wiring by blows to the heads. Scientists want to make these “invisible wounds” visible.

For doctors, if they can’t see or quantify the damage, it’s hard to treat it. Especially with more serious head injuries, standard scans, like CT scans cannot see beyond bleeding or swelling to tell if the brain’s connections are broken in a way it that it can’t repair on its own.

Scientists are looking into technology called fibre -tracking, referring to nerve fibre, which act like a telephone network. These fibres make up the white matter of the brain. The new proposed MRI scan examines these connections and detects if any connects have been broken.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm that handles brain injury litigation claims and other personal injury matters.

Social Media and Personal Injury Cases

Sunday, March 4th, 2012

Insurance companies and their adjusters are increasingly relying on social media as an investigative tool.

Insurance companies are using social media to verify and challenge the accuracy of personal injury claims.

So, what types of accounts are being looked at? Facebook, LinkedIn, Twitter, My Space, hi5.

But, insurance companies haven’t gone public with their policies about social media. We don’t know how they are collecting information, monitoring social media and for what purpose.

Anyone who has a claim for accident benefits or disability benefits should be aware of these tactics and consider what they post on social media sites. You have the ability to choose your privacy settings on sites like Facebook and Twitter. Be wary of what your friends post, especially if they have open profiles and check your settings regarding visibility for these posts.

Clients should also be aware of anonymous “friending” to gain access to Facebook or directing a third party to “friend” someone for the purposes of investigation. These are unethical practices.

According to a recent article published by Canadian Underwriter, “As much as social media sites can help to inform, it is also important to view the information as a snapshot. You have to incorporate it into a total assessment of the claim. You can’t just hang your hat on social media.”

What do the courts have to say about the use of social media in litigation?

Judges in Canada are sorting through the consequences of the uses of social media. The following Ontario cases are cases where judges ruled that content posted on social media sites (Facebook) is admissible as evidence in limited form:

Kourtesis v. Joris (2007)

Leduc v. Roman (2009)

Wice v. Dominion of Canada General Insurance (2009)

These cases show that defence lawyers have successfully argued for the production and preservation of this ‘private’ information in some capacity.

In 2011, an Ontario Superior Court Justice ordered production of a plaintiff’s social media photos in the case, Morabito v. DiLorenzo. This was a motor vehicle accident case. Justice James A. Ramsay ruled that only photographs were relevant evidence, but not status updates or wall posts. The plaintiff was also ordered to re-attend examination for discovery to answer questions about the photos posted on Facebook and other social networking sites.

In these cases, it is about what content is relevant, and what the defense can prove is relevant to the case. The ruling judges must find the content is relevant to the issues in the case.

Another issue that arises is whether or not the plaintiff or claimant has to preserve his or her Facebook site (not allowed to delete any posts or tweets).

What happens if the content of a plaintiff’s social media profile is not relevant to the case?

In Schuster v. Royal and Sun Alliance (2009), the defence lawyers did not provide enough evidence to show the plaintiff’s Facebook profile contained relevant information. The plaintiff did not have to produce or preserve her Facebook page.

The area of social media law is still emerging. In terms of case law, decisions can go either way, so there is no clear direction as of yet.

When it comes to decisions from the Financial Services Commission, there doesn’t seem to be a clear direction either. A January 2011 decision, Prete and State Farm, found that the relevance of images (video posts and pictures) posted on a Facebook did not have enough relevance when weighed against other factors such as sensitivity and practicality. The arbitrator declined State Farm’s request for the productions.

In Rakosi and State Farm, the arbitrator ordered that the applicant produce photos of herself from Facebook and hi5 sites. The request from State Farm met the test for a “semblance of relevance”.

Plaintiff’s lawyers have to advise clients of the potential for social media sites to be used as surveillance. A good idea is to set this out in your initial letter to the client, and to remind them of this when preparing them for discoveries.