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Article by Alon Barda
A recent decision of the Licence Appeal Tribunal (“LAT”) indicates that an insurer cannot simply rely on the opinion of an assessor when determining a claimant’s needs.
The adjudicator said that the insurer should have considered all relevant medical evidence and should have followed up with the assessors for clarification of the claimant’s needs. The failure to do so resulted in a special award against the insurer.
In Malitskiy v. Unica Insurance, 18-010164/AABS, the claimant sought entitlement to attendant care in the amount of $6,000 per month less the partially approved amount of $1,199.10. He also sought entitlement to a rehabilitation benefit of $344,864 for home modifications and entitlement to some cost of examinations. The claimant also sought a special award for unreasonably withheld or delayed payments.
The claim involves an ice fishing accident that occurred on March 16, 2014. The vehicle in which the claimant was travelling hit a pressure crack on the lake and slipped over, ejecting the passengers in the process.
The impact caused the claimant to suffer a brain injury and multiple fractures, including to his cervical spine and wrist. It was later discovered that the accident caused nerve damage in the claimant’s shoulder as well as cognitive and emotional impairments.
Unica deemed the claimant to be catastrophically impaired as a result of the accident.
The adjudicator was persuaded on a balance of probabilities that: the claimant has pain in his shoulder and cannot lift heavy items; he experiences difficulty while using the stairs in his home; he experiences balance issues; he needs assistance with dressing and supervision while showering; he has cognitive and memory issues; and he has emotional issues and needs cuing to eat and engage in hygiene activities.
The adjudicator considered the Form 1 completed by the claimant’s OT assessor recommending $6,020.63 in attendant care per month and the insurer’s assessor recommending $1,199.10 per month in attendant care assistance.
The significant difference between the Form 1’s surrounded assistance to respond to an emergency, coordination of attendant care assistance, and supervision/assistance regarding certain daily tasks. In particular, the insurer was of the view that the claimant did not require overnight assistance to ensure safety and security in the bedroom.
When the insurer’s assessor conducted the assessment, she did not consider whether the claimant needed cuing, emotional support and supervision at night, and she was unable to explain conclusively on cross-examination why she did not do so.
The adjudicator ultimately found that, based on the claimant’s various functional limitations, the additional time recommended by the claimant’s assessor represented a reasonable assessment of the claimant’s attendant care needs and that the claimant is entitled to $6,000 per month from October 13, 2017 to date and ongoing less amounts paid by the insurer.
Unica agreed that some of the home modification recommendations were reasonable and necessary but the significant items of contention included the installation of a home elevator (the insurer proposed an in-home stair lift) and a therapy room for space to engage in exercises and use the equipment while home.
Based on the claimant’s functional needs, the adjudicator found on a balance of probabilities that the claimant required the disputed renovation items and that the home modifications totaling $344,864 are reasonable and necessary.
The most notable aspect of this case is the finding regarding the special award. Under section 10 of Ontario Regulation 664, if the LAT finds that an insurer has unreasonably withheld or delayed payments, the LAT, in addition to awarding the benefits and interest to which an insured person is entitled under the SABS, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts at 2 per cent per month, compounded monthly.
While the adjudicator found that Unica paid for most of the disputed benefits in part and that it based its decisions on the assessments it completed, the adjudicator still found that there was a failure on the part of the insurer to “ask the relevant questions” about the claimant’s functional needs.
For example, the adjudicator states that, after receiving the Form 1 and the treatment plan proposing the home modifications, Unica “should have asked its assessors to investigate whether [the claimant] needed cuing, emotional support, and nighttime supervision”. The assessor testified at the hearing that she did not consider those issues.
Furthermore, the adjudicator found that it was unreasonable of Unica to focus on the reports of their assessors on the core issues in dispute when its assessors had designated the claimant to be catastrophically impaired on various grounds and the medical and treating evidence confirmed that the claimant “has needs for significant assistance that included not just helping him physically but also being attentive to his psycho-emotional needs.”
The adjudicator found that, when read together, the reports of the insurer’s assessors on the issue of attendant care and home modifications did not correspond with the information in the claimant’s medical and treatment file and that their opinions as to the claimant’s functional needs were not supported elsewhere in the evidence.
While Unica had the information available to make further relevant inquiries into the functional needs of the claimant, the adjudicator found that it did not do so despite the fact that this should have been readily apparent based on the evidence already in its possession.
As such, the adjudicator ultimately held that the position taken by Unica with respect to the attendant care benefit and home modifications amounts to an “unreasonable withholding or denial, when the medical evidence, including evidence from Unica’s own assessors, supported [the claimant’s] need for these claimed benefits.”
Accordingly, the adjudicator found the partial denials of these benefits to be “imprudent, inflexible, and immoderate” and ordered a special award. Unica is required to pay 25% of the portions of attendant care and home modifications benefit that were denied. This represents half of the limit outlined in the Regulation. Unica is also required to pay interest at 2 per cent per month, compounded monthly.
While the adjudicator was entitled to reject the opinions of the insurer’s assessors, it is highly questionable as to whether Unica “unreasonably withheld or delayed payments” to warrant a special award.
Insurers are not medical experts. An insurer should be able to rely on the expertise of assessors who conduct benefit-specific assessments, including occupational therapists who complete a Form 1, which is a detailed document. There was no evidence that the insurer withheld relevant medical documentation from the assessors.
However, based on the decision of the adjudicator, it seems that insurers should confirm that assessors are asked all the appropriate questions that may arise from the medical evidence available and to ensure that the response to the benefit at issue includes consideration of the file in its entirety.
An attendant care assessor must consider all the attendant care assistance recommended for a claimant and, if providing a response that does not conform to the medical evidence to date (or earlier insurer examinations), then the assessor should provide detailed reasons explaining why that is the case, particularly on more serious cases involving catastrophically injured claimants.
Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers’ liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Canada Safety Council
It’s a scene that is far too familiar on roads across Canada: a cell phone sounds an alert, the driver reaches for the phone, and in the short time it takes to read the screen, a collision has occurred.
Distracted driving is a trend on the rise, a dangerous and life-threatening behaviour that must be stopped. To mark this year’s National Safe Driving Week, the Canada Safety Council and the Insurance Brokers Association of Canada (IBAC) share a crucial message: distraction behind the wheel is entirely preventable. Just don’t do it.
Distracted driving statistics are understated because distraction isn’t always easy to prove. In fatal accidents where distraction was a possible factor, there may not be evidence of phone usage or, sadly, a living witness to tell the story. This has resulted in a significant underreporting of the issue – still, the data currently available reveals staggering numbers.
According to Transport Canada, distraction was a contributing factor in 21 per cent of fatal collisions and 27 per cent of collisions resulting in serious injury in 2016. Comparatively, those numbers were reported at 16 and 22 per cent, respectively, in 2006.
The Canadian Council of Motor Transportation Administrators (CCMTA) provides further context to these numbers: 1.7 per cent of fatal collisions and 1.9 per cent of collisions resulting in serious injury involved electronic communication devices between 2010–14. While more recent statistics are not available, the prevalence of mobile devices in today’s society makes it a reasonable assumption that these numbers, too, are on the rise.
And if you’re fortunate enough to avoid injury or fatality, you’ll still be subject to fines and potentially demerit points depending on your province. Refer to this chart by the Canadian Automobile Association for a detailed breakdown.
To further compound the financial costs, your auto insurance premiums could sharply increase if you’re found to have been operating a vehicle while distracted.
“Insurance is all about risk, and distracted driving is an extremely risky behavior,” said Peter Braid, Chief Executive Officer of IBAC. “That’s why insurance brokers are partnering with the Canada Safety Council to raise awareness of the danger and encourage drivers to keep their eyes on the road. The stakes are high – death, injury, property damage, fines and rising insurance premiums. Whatever the distraction, it’s not worth the risk.”
The challenge in addressing this issue is cognitive dissonance and, where distracted driving is concerned, willingly engaging in behaviours that are known to contribute to the likelihood of collisions. Studies in provinces across Canada have borne out the same result: a majority of drivers understand that distracted driving is dangerous and illegal; yet, the same respondents report using their devices behind the wheel anyway.
“Personal accountability is a major component of society’s role in reducing distracted driving deaths,” said Gareth Jones, president of the Canada Safety Council. “If you’re in the majority of road users who understand the risks, you owe it to your family and to fellow road users to put the phone away and otherwise minimize distractions. It’s a choice that each of us has completely within our control. Building a culture of safe driving happens one person and one decision at a time, so let’s choose well.”
Other types of distraction
While the topic of distracted driving is often discussed in the context of texting and calling behind the wheel, other forms of distraction exist and can also be harmful. Distracted driving is characterized as any action that removes your focus from the road. This can include eating, adjusting music, heat or GPS, applying makeup and interacting with passengers in the vehicle.
Tips to avoid distraction behind the wheel
- Put your phone on silent or on Do Not Disturb mode. You won’t be tempted by an alert you don’t hear.
- Even better, use an app or a built-in function that activates a Do Not Disturb feature automatically when connected to your vehicle’s Bluetooth or when increased speed is detected. See the enclosed tip sheet for examples.
- Out of sight, out of mind – put your phone in a glove compartment, a zipped purse or knapsack, or even the back seat.
- Make sure to leave enough time in your schedule to eat and groom before getting in the car.
- Ensure that your temperature, music and GPS are set before you leave.
- If it’s really that important, pull over.
Above all else, remember that driving is a potentially deadly task that requires your full attention. You wouldn’t take a call while operating a bulldozer; why do the same with a vehicle capable of going at much higher speeds?
Effective January 1, 2020, SC Insurance and RRJ Benefits Inc. are coming together to form a new venture to strengthen and grow the benefits and life business between the two companies.
This new venture will provide access to innovative resources and cutting-edge proprietary tools. Clients will have access to the SC Hub: a digital administration tool to manage their benefit plans on a paperless platform, as well as A.I. driven solutions to simplify the life insurance application and underwriting process.
Abraham Baboujian, Chairman and CEO of RRJ Benefits, “This venture between our organizations will serve as a catalyst to expand our offering in a strategic manner”. Jessica Bowler (née Cassano), who manages RRJ Benefits will be joining the SC Insurance as Senior Manager of Sales providing continuity to clients and the rest of the team.
The SC Team is excited to add resources and scale with the RRJ connection. “As a result of this venture, we are delighted to be able to offer our clients best-in-class solutions across the entire insurance and risk-management landscape” said SC Insurance President, Darren Abrahams.
About SC Insurance
Originally founded in 1979 as Steven Cohen Insurance Agency Inc, SC Insurance has consistently remained among the most highly respected Life & Benefits agencies in the Toronto area. Current President, Darren Abrahams, has been with SC since 2004, and under his stewardship the firm has forged an exciting path, leveraging the same high-touch level of service and advice, while embracing innovation and technology to streamline and enhance each stage of the client experience.
About RRJ Benefits Inc. (RRJ Insurance Group Ltd)
As one of Canada’s largest independent brokerages, RRJ has been providing Property & Casualty insurance solutions to thousands of clients across Ontario for over 110 years. RRJ has 7 offices (Toronto, Oshawa, Peterborough, Lindsay, Orillia, Bracebridge and Kitchener) and nearly 200 staff. In 2012, RRJ Benefits was introduced, providing Life Insurance and Group Benefits solutions to client within the organization. In 2020 RRJ’s property & casualty insurance operations will be re-organized under a single brand to be called “KRGinsure”.
SOURCE SC Insurance
A system where auto body shops filed claims on behalf of their customers could improve life for the repairer, consumer and insurer, Bodyshop Booster CEO Ryan Taylor proposed recently.
It was no different than what already occurred in the dental field, Taylor argued at the Nov. 8, 2019, SCRS IDEAS Collide event at SEMA.
Taylor said shops were in a race to the customer with parties like dealers, OEMs and insurers, calling such parties “influencers.”
The trick was to get repairers “as far upstream as possible,” he said.
Taylor said Bodyshop Booster started noticing that customers “more and more” were contacting body shops before filing a claim. He listed potential reasons like rising deductibles, fear of premiums increasing with a claim or a collision appearing on CARFAX.
The company had a call center in Toronto, Canada, contact a few thousand shops pretending to be a customer seeking an estimate, Taylor said.
For 94 percent of repairers, the first question was “‘Is this going through insurance?’” he said.
When told it was, 83 percent told the customer to call their insurer first, according to Taylor.
“We just relinquished the race,” he said.
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Update on previously ran an article by ILSTV Dec 9th, 2019
DAYTONA BEACH, Fla., Jan. 07, 2020 (GLOBE NEWSWIRE) — Brown & Brown, Inc. (NYSE:BRO) today announced the completion of the previously-announced acquisition of Special Risk Insurance Managers, Ltd. by Brown & Brown, Inc.
Brown & Brown, Inc. (NYSE: BRO) is a leading insurance brokerage firm, providing risk management solutions to individuals and businesses. With more than 80 years of proven success and thousands of teammates, we offer the knowledge you can trust and strive to deliver superior customer service. For more information, please visit bbinsurance.com.
This press release may contain certain statements relating to future results which are forward-looking statements, including those associated with this acquisition. These statements are not historical facts, but instead, represent only Brown & Brown’s current belief regarding future events, many of which, by their nature, are inherently uncertain and outside of Brown & Brown’s control. It is possible that Brown & Brown’s actual results and financial condition may differ, possibly materially, from the anticipated results and financial condition indicated in these forward-looking statements. Further information concerning Brown & Brown and its business, including factors that potentially could materially affect Brown & Brown’s financial results and condition, as well as its other achievements, is contained in Brown & Brown’s filings with the Securities and Exchange Commission. Such factors include those factors relevant to Brown & Brown’s consummation and integration of the announced acquisition, including any matters analyzed in the due diligence process, and material adverse changes in the business and financial condition of the seller, the buyer, or both, and their respective customers. All forward-looking statements made herein are made only as of the date of this release, and Brown & Brown does not undertake any obligation to publicly update or correct any forward-looking statements to reflect events or circumstances that subsequently occur or of which Brown & Brown hereafter becomes aware.
R. Andrew Watts
Chief Financial Officer
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