Archive for the ‘Aaron Waxman & Associates’ Category

Decisions released in Cornie v. Security National & Younis v. State Farm today

Thursday, November 29th, 2012

In the late summer, the appeal was heard in Leone v. State Farm and State Farm’s appeal was dismissed. The decision concluded that mediation was deemed to have failed because it did not occur within 60 days of the application being filed and the parties could not extend the time limit on consent once the 60 days had expired.

Director’s Delegate Evans stated that “I agree with the arbitrator that Mr. Leone did not need to attach the report of mediator to his application for arbitration where mediation has failed by statutory definition, but no report of mediator is available…Mr. Leone should not be prevented from proceeding to arbitration where through no fault of his own, s.280(8) has not been complied with.”

Today, a decision was released in Cornie v. Security National (this case is also listed as Hurst v. Aviva Insurance Company) where 4 plaintiffs commenced litigation against their insurers after the 60 day period had passed. All 4 insurers appealed the decision in Cornie (“the appellants”).

All 4 plaintiffs (“the respondents”) suffered serious injuries as a result of motor vehicle accidents and filed for mediation as a result of disputes against their accident benefits providers. All of the respondents waited at least 60 days after filing for mediation for FSCO to appoint a mediator and for a mediation to take place. No mediator was appointed and no mediation took place in any of the 4 cases.  They took the position that mediation had failed because the prescribed time for mediation had expired. Each wrote a letter to FSCO requesting a mediator’s report declaring that the time for mediation had elapsed and that mediation had failed according to s. 281(2) of the Insurance Act.

Subsection 281(2) of the Act prevents insured persons from resorting to court actions against their insurers unless they first sought mediation and mediation failed.

FSCO refused to issue a report of mediator, taking the position that the time limit for conducting mediation did not commence until an application had been assessed and found to be complete. Each of the respondents then commenced a court action. Each insurer brought motions to strike or stay the actions, arguing they were barred by s. 281(2), and all motions were heard by Sloan (J) who dismissed the motions.

The respondents took the position that mediation must be completed within 60 days of their applications to FSCO, relying on the Act, the SABs and the Dispute Resolution Practice Code.

Rule 19 of the DRPC states that “mediation must be concluded within 60 days” of the filing of a properly completed application for mediation, unless the parties agree otherwise.

At paragraph 26, R.G. Juriansz J.A. writes,

[26]The appellants support their argument by examining the functioning of FSCO. FSCO’s services resolve some 75% of cases mediated. FSCO also eliminates from the system claims that are incomplete, vexatious, or barred by statutory limitation periods. Fresh evidence tendered by the IBC indicates that FSCO received a total of 36,492 applications for mediation in 2011. As of April 1, 2012, 21,023 of 26,240 active applications that had not yet been referred to mediation were more than 60 days old. Dismissing the appeal would allow these disputes to proceed in court or arbitration, when 75% of them would have been resolved by mediation before FSCO. The resulting costs could be immense.  Insurers pay a filing fee of $500 for mediation, and $3,000 for arbitration. If all of the claims that would have otherwise gone to mediation are forced into arbitration, the cost to the insurance industry from the additional filing fees alone could amount to $83 million.  When one considers the additional costs of court proceedings and legal fees, which are not so easily calculated, it is inevitable that there would be upward pressure on insurance premiums.

And at paragraph 38:

[38]       I do not accept that the 60-day clock does not begin to run until FSCO has assessed an application as complete. Such an interpretation, which would allow FSCO to accumulate a backlog of any length, would ignore the legislative purpose of providing a speedy mediation process. As noted in s. 10 of the regulations, a mediator is required to attempt to effect a settlement of a dispute within 60 days after the date on which the application for the appointment of a mediator is filed. Rule 6 of the DPRC provides that a document that is required to be filed “must be delivered to the Dispute Resolution Group” by one of several methods of delivery permitted under Rule 7. Clearly, the word “filed” is used in the legislative scheme in its ordinary sense.

And the conclusion:

[56]       The legislative scheme for resolving disputes about statutory accident benefits requires that insured persons resort to a mandatory mediation process before commencing a court proceeding or submitting their disputes to arbitration. The Act, the regulations and the DRPC make it clear that this process is intended to be completed within 60 days from the filing of an application for mediation with FSCO, unless the parties agree to an extension of time. The scheme postpones the right of insured persons to commence civil actions against their insurer in order to allow the mediation process to be completed within the time prescribed, but leaves them free to commence actions once that period has expired.

The appeals were dismissed and costs were awarded in favour of the respondents in the amount of $10,000 against the appellants (the insurers) and against the Insurance Bureau of Canada in the amount of $6,584 including disbursements and costs.

A decision was also released in Younis v. State Farm where the plaintiff commenced litigation shortly after an application for mediation was filed. State Farm brought a motion to stay the proceedings in Younis until an actual mediation was held. The motion was heard in February 2012, which was more than 60 days after the application for mediation was filed. The motion judge followed the decision of Cornie v. Security National and concluded that s. 281(2) of the act allowed an insured person to commence a civil action if mediation was sought and not completed within 60 days of filing an application.

The motion judge considered the circumstances and declined to stay the proceedings. The Court of Appeal, however, allowed the appeal and determined that the circumstances differed from Cornie as the plaintiff had brought a civil action a week after filing for mediation.

At paragraph 12 & 13, R.G. Juriansz J.A. states,

[12] I would allow the insurer’s appeal. The motion judge evidently approached the motion as one that called upon the court to exercise its inherent jurisdiction to stay an action. However, the insurer’s motion called upon the court to apply a statutory bar to the commencement of an action. The terms of s. 281(2) of the Act are clear. No person may bring a proceeding until mediation has failed. The respondent jumped the gun and brought this proceeding before that had occurred.

[13]       I appreciate that by the time the motion to stay came before the court the 60-day time period had expired. From the practical perspective adopted by the motion judge, there would seem to be no reason to require the respondent to start again. However, the respondent commenced his action in contravention of the statute and the statute must be applied. Insured persons cannot commence civil actions until mediation has failed. To conclude otherwise would allow all insured persons to immediately commence civil actions knowing that the insurers’ motions to stay are not likely to be heard until after the expiration of the 60 day time period. The statute does not permit this stratagem.

The Court of Appeal also ruled that as the commencement of the action was statute-barred, it is quashed. No costs were awarded.

 

 

Cars with Wifi, Beware of Wildlife and Road Rage: An Update on the Wonderful World of Driving

Tuesday, November 20th, 2012

In-car technology has come a very long way in recent years. Auto makers have installed radar devices and cameras to help drivers maintain safe distances from other cars, keep vehicles in their lane and even alert drivers of impending accidents. There is in-car technology that even goes as far as automatically breaking and stopping the car as necessary.

How about if your car could have a bird’s eye view of the road, and see other vehicles, pedestrians and bicyclists? A special form of Wi-Fi is being developed that will allow cars to communicate with each other through special sensors. It would be vehicle to vehicle Wi-Fi.

This system is being piloted by the University of Michigan, eight automakers and the Department of Transportation. It is being tested on 3,000 vehicles in Michigan with sensors. Participating automakers include GM, Ford, Toyota, Honda, Nissan, VW, Hyundai/Kia and Mercedes. Data from the trial will ultimately help determine whether or not the National Highway Traffic Safety Administration should pursue this technology.

Collisions between wildlife and vehicles are often unpredictable. Collisions tend to spike during the fall, when it is breeding season for deer. In general, due to the earlier dusk and poorer visibility, more accidents are likely to occur. Drivers must obey wildlife signs and traffic signs.

It is better to think about and learn how to avoid an encounter with wildlife, than have to react to a dangerous situation when you are unprepared. Drivers and passengers should be on the lookout for wildlife on the road, in the ditch, on the shoulder. Driving at a slower speed may reduce the chances of having to swerve at all. Always reduce your speed in signed areas. The danger of swerving is that it can take you into the path of a ditch and take you off course.

However, if you are about to collide with a moose, experts say you should swerve as a collision with a moose carries a significant risk of injury or death to motorists and passengers.

Another threat on the roadway is distracted drivers. The popularity of smartphones and internet use while driving has made drivers even more distracted than ever.

State Farm conducted its annual research report on distracted driving, surveying 1000 US motorists. Texting and driving remains a concern, but there has been a noticeable increase in “webbing” while driving (internet use).

The study found that it is not just youth who are committing these distracted driving offenses, but motorists of all ages.

While the distracted driving focus has traditionally been on young people, the data indicate that motorists of all ages are using the mobile web while driving.

Another study says that young drivers are more likely to drive while tired. The AAA Foundation for Traffic Safety surved drivers aged 16-24 and found that 1 in 7 licensed drivers have admitted to falling asleep behind the wheel at least once in the past year.

Research shows that fatigue impairs a person’s driving ability, and causes them to behave in similar ways a person does while intoxicated. Most drivers underestimate the dangers of driving while fatigued. Driving fatigued can cause a person to miss exits and traffic signs,  drifting from your lanes and daydreaming.

A Canadian Study shows that 80% of Canadian drivers admit to road rage behaviour.   The poll, completed by Leger Marketing, suggests that about 80% of Canadians admit to aggressive behaviour such as using profanity, yelling or following other vehicles too closely. The most commonly reported aggressive behaviour was speeding.

Distracted drivers (including the use of mobile phones) were the most common trigger for road rage-like behaviour. Being cut off by other drivers, as well as tailgating behaviour were also causes of road rage. Other reasons for road rage included running behind schedule and having a bad day.

Aaron Waxman and Associates is a personal injury law firm located in Toronto. We handle various types of personal injury claims including automobile accident claims and disability claims.

 

Chronic Pain in the News

Monday, November 19th, 2012

A small British study has shown that laughter can increase your tolerance of pain. The study, called ” Social laughter is correlated with an elevated pain threshold”, confirmed that social laughter, laughter in the presence of others release endorphins, the same feel-good brain chemicals that are released during exercise.

Laughter is useful and helpful when you are hurting because it is work for the body. The release of endorphins through the body masks pain. It is a work out for the chest and lungs. The study was led by Robin Dunbar, PhD, a professor of evolutionary psychology at Oxford University.

The Scientific American recently posted an article entitled “How Chronic Pain Affects Memory and Mood”.  Sufferers of chronic pain also experience faulty memory, depression and anxiety. According to new research from Northwestern University, the reasons for these symptoms could be that people who experience chronic pain suffer from an impaired hippocampus. The hippocampus is the region of the brain responsible for learning, memory and emotional processing.

Researchers at Northwestern University used anatomical brain scans to study the brains of people suffering from chronic back pain or complex regional pain syndrome and found that they had a smaller hippocampus than healthy people. The study turned to mice for more clues about how the hippocampus worked. Mice in chronic pain displayed greater anxiety like behaviours. The mice were unable to produce new neurons in the hippocampus, which is one of the few brain areas where adult mice and humans can grow new neurons.

The lead study researcher suspects that the hippocampal size difference seen in humans could be a reflection of the lack of neuron growth and other problems that were seen in the mice. Without the formation of new neurons, memory and emotional processes would also become impaired.

The study author believes that the study underlines the importance of treating chronic pain as a brain based disorder, in addition to targeting its perceived source in the body.

In technology news, an iPhone/iPad App called My Pain Diary has won awards and has found to be beneficial to those who suffer with chronic pain.

The app was originally released for iPhones, and is now avaialable for iPads, called My Pain Diary HD. It was created by a chronic pain sufferer. It helps patients and chronic pain sufferers track their pain and easily report it to caregivers and doctors. Features include an automatic weather tracker, the ability to attach photos, and the ability to track and compare multiple chronic conditions within one app.

Other features include the ability to create custom PDF doctor’s report to share with doctors, or to store in the app, private entries, which can be flagged as private so as not to be shared, a reminders feature, and a passcode option. There is also a Dropbox Backup option to back up data as well as iCloud syncing between devices.

 

 

 

 

 

 

Halloween Safety Tips 2012

Tuesday, October 30th, 2012

Children anxiously await the end of October, waiting for Halloween to come. This year, with the unpredictable weather we’ve had over the past few days, everyone, should take some extra precautions when trick or treating and if driving in residential areas during the peak of trick or treating.

Regardless of the weather, there are certain safety recommendations that should not go ignored when it comes to ensuring the safety of trick or treators.

Safety Tips for Trick or Treating:

1. Make yourself seen: Costumes should be light coloured or have reflective strips so that children are seen more easily at night (put reflective strips on accessories too).

2. Be careful of costume length – make sure costumes aren’t dragging so that children don’t trip over their costumes.

3. Use face pain rather than masks or something that covers the eyes – keep childrens’ line of sight clear.

4. Travel in Groups. Young children should be accompanied by an adult.

5. Cross safely, walk safely: Remind children to walk on sidewalks on not on the streets, and to cross at intersections or crosswalks. Remind them to look both ways before crossing the street and to check for cars.

6. Stay in well-lit areas: Visit homes that have the porch light on, or other lights on. Carry a flashlight or make sure your child is carrying a flashlight.

7. Tell your trick or treator to stay away from candles and open flames.

8. Teach your children to only accept treats at the door, not to get into cars with strangers, or enter anyone’s house that they don’t know.

 

Drivers, too have to take extra care and be extra vigilant.

Safety Tips for Drivers:

1.  Watch out for children and other pedestrians crossing the street in residential areas- they may not be crossing at intersections.

2. Expect large groups of people to be crossing; be patient and let them finish crossing.

3. Be aware of increased pedestrian traffic.

4. Look out for signs of moving objects like debris, or it could be people in dark costumes.

5. Drive slowly, don’t be in a hurry.

 

Aaron Waxman & Associates is a personal injury law firm in Toronto handling various types of personal injury claims. We offer a free no obligation consultation.

Insurer cannot recover retroactive CPP Disability Payments- Pries and Economical Insurance: Decision on a Preliminary Issue

Tuesday, October 23rd, 2012

In Pries and Economical Insurance, Mr. Pries was injury in a car accident on September 3, 2007. He applied for accident benefits through Economical. He applied for income replacement benefits as he was unable to work. Economical paid them for a time and terminated them when they felt he no longer met the criteria for payment. After receiving updated information, Economical reinstated benefits.

During the time of non-payment, Mr. Pries submitted an application for Canada Pension Plan Disability Benefits. CPP found him eligible. He received a letter on March 3, 2010 informing him that he was approved for benefits and that he would be receiving a lump sum payment from CPP retroactive to the date when CPP entitlement began, namely November 23, 2008. The lump sum payment of $10,954.88 was from November 23, 2008 to February 28, 2010.

As is necessary, Mr. Pries notified his insurer of CPP’s letter and his entitlement to CPP disability benefits.

On March 15, 2010, Economical formally provided notice of its intention to collect a repayment of benefits from Mr. Pries in the amount of $12,333.34 as a result of the overpayment situation brought about by receipt of the lump sum payment from CPP.

Mr. Pries and Economical went to mediation on this matter and were unable to come to a resolution and therefore an application for arbitration was brought.

Economical recognizes that Mr. Pries is entitled to an ongoing income replacement benefit. Both Mr. Pries and Economical acknowledged that CPP benefits are deductible from income replacement benefits. The dispute was over Economical’s insistence that the entire lump sum payment is properly repayable in accordance with the Statutory Accident Benefit Schedule (SABS).

The right to deduct CPP payments from IRB payments is a statutory provision that is incorporated into the insurance contract. The right of the insurer to ask for repayment falls under section 47(1)(c).

In this case, the dispute concerned section 47(3): “The obligation to repay a benefit does not apply unless the notice under subsection (2) is giving within 12 months after the payment was made.”

The insurer took the position that S.47(3) means that notice must be given within 12 months after the collateral payment giving rise to the overpayment received while Mr. Pries took the position that a right to repayment is only generated when notice is given within 12 months of the date that payment of the benefit to be repaid has been paid.

The pre-hearing was heard on August 10, 2012 by Arbitrator John Wilson.

The result of the pre-hearing is as follows:

Economical may not claim repayment [of'] income replacement benefits prior to the notice of repayment given on April 27, 2010 and may only deduct CPP benefits on a going-foward basis from the date of notice.

 

Arbitrator Wilson, in the decision states:

It should be noted that Economical could at anytime have put Mr. Pries on notice that he had to apply for CPP benefits to continue to receive IRB benefits. Economical was not shy about ceasing to pay IRB benefits for reasons that later turned out to be spurious, and could well have acted promptly to bring the CPP issue forward. It did not and Mr. Pries did not apply until much later, all of which could have been a factor in potentially delaying both the CPP payment and the notice of deductibility.

In the end, Economical benefited from Mr. Pries’ action and continues to do so. If Mr. Pries gets to keep a little more of his past CPP benefit than Economical intended, then it is the result of an anomaly in the legislation, not the fault of Mr. Pries.

…Consequently, while I accept that the drafters of the Schedule may well have had the overall goal of making all collateral payments deductible, and consequently recoverable by way of repayment, that goal did not translate well into the legislation itself.

 

Mr. Pries’ IRB amount, as a result of the deduction of CPP and the insurer’s claim for repayment is $87.56 per week (from $264.48).  Arbitrator Wilson states “One can infer that, even with the CPP payments available to Mr. Pries, he is not getting rich on the back of the Insurer. Indeed, persons living on the economic margins of society such as Mr. Pries must be seen as a highly vulnerable group”.

This decision is currently under appeal. An update will be posted once the results of the appeal have been released.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle personal injury claims including car accidents, accident benefits, Canada Pension Plan denials, Critical Illness Claim denials and various other types of claims.

Pastore v. Aviva Canada Inc. – Definition of Catastrophic Impairment broadens, victory for the plaintiff’s bar

Thursday, October 11th, 2012

The Ontario Court of Appeal finally released its decision in Pastore v. Aviva Canada Inc. It’s been referred to as a “landmark decision on chronic pain”.

The OCA ruled that chronic pain is a psychological condition that can produce a catastrophic impairment, thereby entitling accident victims to enhanced medical benefits.

The unanimous decision of the Court means will allow claimants with severe psychological impairments to access much-needed benefits beyond standard accident benefits.

The Court of Appeal overturned the lower court’s decision that would have denied the plaintiff, Anna Pastore access to extended benefits.

Pastore v. Aviva concerns a woman who was struck as a pedestrian in November 2002 and injured and broke her left ankle, which never healed properly, leading to numerous surgeries and an eventual knee replacement.

Prior to the accident, she was the primary caregiver to her husband of over 35 years, who was receiving chemo-dialysis.  The decision states that she is almost completely dependent on others for her most basis personal care needs.

Pastore applied for catastrophic determination in May 2005.

Pastore was assessed by a team of medical assessors to determine if she was catastrophically impaired. It was found that she had catastrophic impairment due to mental or behavioural disorder. She had class 4 or ‘marked impairment’ in terms of her activities of daily living and assigned her a class 3 (moderate impairment) with respect to social functioning, concentration, persistence and pace and deterioration or decompensation in work or work-like settings.

Aviva did not accept the findings of the assessment centre and this led to mediation and arbitration.

One major issue was whether marked impairment in one category was enough to lead to a catastrophic designation.

The arbitrator and the Director’s Delegate upheld the decision of the assessment centre and found that Pastore was catastrophically impaired. Aviva appealed this decision and the Divisional Court sided with Aviva, stating that the Guides portion of the Statutory Accident Benefits Schedule (SABS)  requires all four categories to be considered as marked impairments in order for a person to be deemed as catastrophically impaired.

The Ontario Court of Appeal disagreed and overturned the Divisional Court’s decision, siding with the original decision, stating that the American Medical Association’s Guides to the Evaluation of Permanent Impairment language did not specifically require all four categories to be considered marked impairments for a catastrophic impairment designation.

The role of pain was addressed within the context of the marked impairment test. The OCA concluded that a cumulative approach should be taken where it is not possible to factor out the impact of discrete physical impairment and associated pain limitations.

What the court is saying, is that pain can be considered within the marked test in cases where the pain is not cleared related to physical causes, but may be related to a mental disorder.

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm that handles personal injury claims, including catastrophic cases.

Ontario Coroner’s Report on Pedestrian Deaths: No Jaywalking and Reduce Speed Limits

Thursday, September 20th, 2012

Ontario’s Deputy Chief Coroner, Dr. Bert Lauwers issued his report on pedestrian deaths on Wednesday, September 19, 2012, in collaboration with the Office of the Coroner.

The Report reminds us that we are all pedestrians.

According to the Coroner’s office, approximately 113 Ontarians die annually from pedestrian accidents.

The Coroner’s office suggested the following:

  1. Pedestrian deaths are more likely to occur during the months when daylight is shorter. (e.g. November to March).
  2. Pedestrian deaths are more likely to occur when a pedestrian and/or driver is using a mobile entertainment/communication device. (e.g. cell phone, ipod, etc.).
  3. Pedestrian deaths are more likely to occur when one or more persons involved in the collision are under the influence of alcohol and/or drugs.
  4. The vast majority of pedestrian deaths are preventable.

According to the Review on Pedestrian Deaths, in Canada, characteristics of pedestrian traffic are as follows:

  • 75% of pedestrian traffic fatalities occurred on urban roads;
  • 60% of pedestrians killed in traffic crashes were trying to cross the road;
  • 35% of fatally injured pedestrians were aged 65 or older even though they represent only 13% of the population;
  • 63% of pedestrians killed at intersections were 65 or older;
  • 6% of fatally injured pedestrians were under the age of 16 and of these, 20% ran out into the street;
  • 33% of fatally injured pedestrians acted in a manner which caused or contributed to the crash;
  • 33% of fatally injured pedestrians were struck by a driver who had committed a traffic infraction prior to the crash;
  • 60% of pedestrians were killed at night or during dim light conditions when they were not seen by drivers; and
  • 40% of fatally injured pedestrians had been drinking

The Coroner’s Office made 26 recommendations in the Report. Highlights of the recommendations include:

  • lowering speed limits in residential areas to 40 km/h
  • installing side guards on heavy trucks to help prevent people from falling beneath and getting crushed by the rear wheels
  • implementing a complete streets approach to guide the development of new communities and redevelopment of existing ones
  • creating an educational program for senior citizens and other adult pedestrians
  • creating an educational program for drivers

The Coroner found that 67% of pedestrian fatalities occurred on streets with a posted speed limit of above 50km/h.

Other significant factors for pedestrian deaths included jaywalking, inattentive motorists and distracted walkers.

It was found that nearly one third of pedestrians died while jaywalking.

The Report notes that in 14% of the deaths, driver inattention was noted.

Pedestrian distractions including dogs, smartphones and cellphones may have contributed to 20% of the fatalities.

Canada has a Road Safety Strategy according to the Report. The vision of the Strategy is to make Canada’s roads the safest in the world. Currently, Canada is ranked 10th in terms of fatalities per billion vehicle kilometers travelled compared to other member countries of the Organization for Economic Cooperation and Development.

The key elements of the Strategy are:

  • a downward directional trend in fatality and serious injury rates over the 2011 to 2015 period;
  • jurisdictions will adopt a holistic (Safer System) approach addressing the vehicle, the road infrastructure, and road users based on the primary risk groups;
  • an evidence-based Best Practice Framework will be adopted in choosing interventions;
  • a fluid and flexible approach will allow jurisdictions to adopt best practices appropriate to their situation; and
  • jurisdictions will own their road safety plans.

To achieve this, the Strategy seeks to target:

  • young drivers (16 to 24);
  • medically-at-risk drivers (e.g. those with heart disease or cognitive disorders such as Alzheimer’s Disease);
  • vulnerable road users (i.e. pedestrians, motorcyclists, bicyclists);
  • motor carriers (e.g. managers of carrier operations, truck and bus drivers);
  • high risk drivers (e.g. those who don’t wear seat belts or who speed, drive impaired, or drive without a valid license) and the general population.

Dr. Andrew McCallum, Chief Coroner for Ontario stated “A road safety paradigm shift will be necessary”, acknowledging that the rising cost of fuel will result in an increase in cyclists and pedestrians.

 

Aaron Waxman and Associates is a Toronto personal injury law firm. We handle various types of personal injury claims including motor vehicle accident, pedestrian, long term disability and critical illness claims.

Slip and Fall outside of Car not an accident according to FSCO- Reversal of controversal slip and fall case

Tuesday, September 18th, 2012

Webb and Wawanesa involves the case of a woman, Daphna Webb who slipped on ice outside of her car. She parked her vehicle in a residential neighbourhood, near a snow bank where access points had been cleared. When she exited her vehicle, and walked around the front of her car, she fell backwards and broke 4 bones in her foot.

A May 2011 decision from Arbitrator Joyce Miller found that Webb was still in the process of exiting her vehicle when she fell, therefore the incident constituted an “accident” under the Statutory Accident Benefits Schedule (SABS).

The SABS defines “accident” is defined in section 2 of SABS as: “An incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

Arbitrator Miller found that that the use of a motor vehicle caused an uninterrupted chain of events ending in Webb’s injuries.

Wawanesa appealed the decision, stating that the use or operation of an automobile did not cause Webb’s injuries.

The July 18, 2012 decision of Director Delegate Lawrence Blackman rescinded the decision of Arbitrator Miller and found in favour of Wawanesa, holding that the chain of causation was broken. There was an independent source, the ice and snow at a pedestrian access point resulting from the weather conditions.

Director Delegate concluded that Webb’s injury falls outside of the scope of the applicable definition of accident.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle disability claims, automobile accident claims, long-term disability claims and other types of personal injury claims.

 

 

Rakosi and State Farm – Claimant’s appeal dismissed (social media warning)

Thursday, September 13th, 2012

Eniko Rakosi was involved in a car accident on May 5, 2008. She applied for accident benefits through her accident benefits insurer, State Farm.

State Farm denied various benefits including income replacement benefits, attendant care and medical benefits. The issues failed at mediation and the claimant filed for arbitration.

At the pre-hearing, State Farm asked for productions from Ms. Rakosi’s Facebook account. The arbitrator hearing the case, Arbitrator Bujold ordered Ms. Rakosi to produce all photographs (with her in it) posted to her Facebook profile, included any limited access or private portion of her profile from the date of loss to May 5, 2010.

Arbitrator Bujold held that the test for production was a “semblance of relevance” test.

Previously, State Farm had accessed Rakosi’s Hi5 account (another social networking site) and found photographs which showed the claimant engaged in various social and recreational activities. State Farm believed that her Facebook account would show similar photographs. Since Rakosi’s claim was that she was unable to engage in employment and required help with personal care, State Farm wanted access to this information. They felt there would be a ‘semblance of relevance’.

Ms. Rakosi’s Hi5 site showed pictures of her being attached to a zipline and ziplining. State Farm was of the view that these pictures related to activities related to the disputed benefits. Since Hi5 and Facebook are both social media sites, State Farm made the argument that the Facebook content was relevant.

The Arbitrator was not persuaded by Ms. Rakosi’s counsel that there were reasons against production.

Ms. Rakosi appealed the decision, citing previous decisions that were in favour of claimants like Prete and State Farm, and  Leduc and Roman, where the appellant deemed the semblance of relevance test was correctly applied.

The appeal was heard by Director’s Delegate Blackman, who upheld the original decision that Ms. Rakosi should produce her Facebook account.

Director’s Delegate Blackman however found that the original arbitrator had erred by using the “semblance of relevance” test. This test was used in the court system, under the Rules of Civil Procedure (prior to the January 1, 2010 changes).  Relevance could be interpreted broadly. When the RCP changes came in January 2010, the rule,  Rule 30.02(1) was changed to reflect proportionality, changed from “relating to any matter in issue” to “every document relevant to any matter in issue in an action”.

The rules guiding arbitration stem from the Statutory Powers Procedure Act and instead use a test based on relevance and reasonableness.

Director’s Delegate Blackman felt that using the semblance of relevance test would undermine the alternative dispute resolution system and create a more complicated and costly system while the courts in tort matters are moving in the opposite direction.

Director’s Delegate Blackman found there was no error in extending the inference from one social media site to another and agreed it was likely that her Facebook site would likely contain similar photos.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle various types of claims, including accident benefits claims.

If you are involved in a law suit and have social media sites, remember to inform your lawyer you have social media accounts. Do not alter, delete or remove anything from your account during the course of your lawsuit.

Pre-existing conditions and Critical Illness Claims – Duke v. Clarica Insurance

Wednesday, September 5th, 2012

The Alberta case of Duke v. Clarica Insurance involves the denial of a critical illness insurance claim.

Mr. Duke was diagnosed with Parkinson’s Disease. He applied for critical illness through Clarica in 2001 and purchased a policy for critical illness coverage in the amount of $500,000. He submitted a critical illness claim on May 15, 2003, accompanied by an Attending Physician’s Statement. The Statement was completed by a neurologist.

He was advised that his claim was denied in September of 2003.

Parkinson’s Disease was a covered critical illness under the policy. Clarica stated that according to reports they had received, Mr. Duke’s medical history revealed symptoms of Parkinson’s Disease as early as 1997,  before the policy came into force, therefore they were denying the claim.

The Court was faced with the task of deciding two crucial issues, which can be applied to critical illness claims:

1. Is the Exclusion Clause Ambiguous?

2. Does the Plaintiff Qualify for Benefits?

The Court found that neither Mr. Duke or any of his treating physicians or assessors had associated his earlier symptoms with Parkinson’s disease prior to issuing the policy. The Court also found that the Plaintiff had no obligation to disclose these physical concerns at the time. They were generalized symptoms. The wording of the exclusion clause was found to be ambiguous and the Court found that it did not apply and that Clarica improperly denied the CI benefit.

With respect to the second issue, the Court deemed that Mr. Duke required substantial assistance in order to perform his activities of daily living and satisfied the criteria needed to require a critical illness benefit.

Mr. Duke was awarded damages in the amount $500,000, the amount of the critical illness insurance claim benefit.

Clarica appealed the decision and lost.

The judgement states: “Finally, it is agreed that the respondent was completely honest and forthright in his disclosure and did not in any way misrepresent or conceal his condition or his general state of health from the appellant, nor did he attempt to mislead the appellant.”

The full case can be found here: http://www.canlii.org/en/ab/abca/doc/2008/2008abca301/2008abca301.html

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