Lawyers Financial
Personal Injury

Recent decision a step forward for victims

Seriously injured accident benefit claimants in Ontario no longer are required to dispute a “catastrophic impairment” denial within two years from the date of the denial, according to a recent arbitration decision, Toronto plaintiff’s personal injury lawyer Darcy Merkur writes in Lawyers Weekly.  Read Lawyers Weekly

"Because qualifying as having suffered a 'catastrophic impairment' allows an Ontario motor vehicle accident claimant to essentially access an extra $2-million in needed benefits, the determination is crucial both to the claimant and to the responsible insurer," writes Merkur, partner with Thomson Rogers.

Several different tests that determine a catastrophic impairment (CAT) qualification under the Ontario Statutory Accident Benefit Schedule have been subject to a number of recent Ontario Court of Appeal cases that have clarified how they should be properly interpreted, the article states.

Merkur goes on to discuss the outcome of Do v. Guarantee Company of North America (FSCO A11-000718), where the accident victim submitted an application for a catastrophic impairment determination in December, 2006, 14 months following his October, 2005 accident. In May, 2007, Guarantee relied on the findings of a series of multidisciplinary insurer examinations and concluded that he did not sustain a catastrophic impairment.

The victim in the case had a rebuttal report prepared at the insurer’s expense, and the rebuttal assessors concluded that he did in fact suffer a catastrophic impairment, writes Merkur. A further paper review was then authored by the insurer examiner, and in April, 2008, the insurer sent another explanation of benefits maintaining its denial of a catastrophic impairment designation. A mediation was filed with the Financial Services Commission of Ontario within two years of the April, 2008, denial (but not within two years of the original May, 2007, denial), the article states.

"In her decision last Nov. 6, arbitrator Suesan Alves reviewed the two-year limitation period set out in s. 281.1 of the Ontario Insurance Act. She noted that it refers to mediating 'within two years after the insurer’s refusal to pay the benefit claimed,'" writes Merkur. "Alves concluded that only a denial of a 'benefit' triggers the two-year limitation period in s. 281.1, not a determination of a 'catastrophic impairment' designation. Alternatively, the arbitrator said that, if she is wrong on this issue, the later date of April, 2008, when the 'final' refusal was made, applies to start the limitation period."

Merkur calls the decision a "step forward for accident victims."

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