Surprising Special Award Against Insurer

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.

Background

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.

Attendant Care

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.

Home Modifications

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.

Special Award

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.

Takeaway

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.

Source: Mondaq

Commission income earned by life insurance broker was taxable

By Law Times

Taxpayer was life insurance broker employed by G Inc., was majority shareholder of G Inc. and was director and officer. Commissions in respect to any life insurance policies placed through services of taxpayer were paid to, and received by, G Inc. and G Inc. paid salary to taxpayer for services he provided on its behalf. In 2014, taxpayer purchased life insurance policy with benefit amount of $1,000,000 on his own life. Insurer paid first year commission in amount of $20,822.41 to G Inc. and bonus commission of $36,439.22 was paid in respect of policy by C Ltd. to G Inc.. In 2014, G Inc. paid salary of $111,617 to taxpayer and relying on Canada Revenue Agency (CRA) administrative policy, taxpayer deducted from his salary $57,261.53, which represented total of commissions in respect of policy. CRA issued reassessment to disallow deduction of commissions. Taxpayer appealed. Appeal dismissed. Nothing in s. 8 of Income Tax Act permitted taxpayer, in computing his income from employment in 2014, to deduct commissions received by G Inc. in respect of policy. Commission income earned by life insurance broker was taxable. If CRA determined that particular taxpayer did not qualify for favourable treatment set out in CRA’s administrative policy, taxpayer’s appeal could not be decided in manner that was inconsistent with Act. Even if administrative policy could be applied, taxpayer did not come within that policy.

Ghumman v. The Queen (2019), 2019 CarswellNat 2252, 2019 CarswellNat 2324, 2019 TCC 125, 2019 CCI 125, Don R. Sommerfeldt J. (T.C.C. [Informal Procedure]).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Taxpayer was life insurance broker employed by G Inc., was majority shareholder of G Inc. and was director and officer. Commissions in respect to any life insurance policies placed through services of taxpayer were paid to, and received by, G Inc. and G Inc. paid salary to taxpayer for services he provided on its behalf. In 2014, taxpayer purchased life insurance policy with benefit amount of $1,000,000 on his own life. Insurer paid first year commission in amount of $20,822.41 to G Inc. and bonus commission of $36,439.22 was paid in respect of policy by C Ltd. to G Inc.. In 2014, G Inc. paid salary of $111,617 to taxpayer and relying on Canada Revenue Agency (CRA) administrative policy, taxpayer deducted from his salary $57,261.53, which represented total of commissions in respect of policy. CRA issued reassessment to disallow deduction of commissions. Taxpayer appealed. Appeal dismissed. Nothing in s. 8 of Income Tax Act permitted taxpayer, in computing his income from employment in 2014, to deduct commissions received by G Inc. in respect of policy. Commission income earned by life insurance broker was taxable. If CRA determined that particular taxpayer did not qualify for favourable treatment set out in CRA’s administrative policy, taxpayer’s appeal could not be decided in manner that was inconsistent with Act. Even if administrative policy could be applied, taxpayer did not come within that policy.

Ghumman v. The Queen (2019), 2019 CarswellNat 2252, 2019 CarswellNat 2324, 2019 TCC 125, 2019 CCI 125, Don R. Sommerfeldt J. (T.C.C. [Informal Procedure]).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Changes to Out-of-Country Medical Coverage Now in Effect

As of January 1, 2020, OHIP no longer covers any portion of out-of-country medical expenses

THORNHILL, ON, Jan. 2, 2020 /CNW/ – CAA South Central Ontario (CAA SCO) is reminding travellers that changes to out-of-country medical coverage in Ontario are now in effect, prompting the need to review travel insurance coverage.

“We are working to educate travellers to make sure they know what they are buying. We are an organization founded to help keep our members safe, and coverage while travelling abroad is a big part of that,” said Elliott Silverstein, director, government relations, CAA Insurance. “Travel insurance protects from unexpected and costly emergencies and it’s important to evaluate available coverage, based on personal needs, to determine how to best safeguard you and your family. This is even more important now that there is no coverage through OHIP.”

Some of the key things to consider when it comes to buying travel insurance are how many trips you are taking a year; if you want comprehensive coverage or medical-only insurance; and whether or not the insurance provider offers additional assistance such as interpreters, hospital recommendations and other coordination services.

Additional tips to consider when buying travel insurance

  • Ask questions. Speak to a knowledgeable travel insurance advisor that understands your needs.
  • Be honest. It is important that you answer any questionnaire accurately to disclose any pre-existing conditions, and ensure you have the proper coverage suited specifically for you, so you can travel with peace of mind.
  • Build travel insurance into your travel plans. Purchasing travel insurance must be done in your home province. As you begin to consider your next destination, add travel insurance to your “to do” list.
  • Don’t base your decision on price alone. Look at what coverage is most appropriate for your circumstances and consider all different types of plans and levels of protection.

Questions to ask:

  • What are the eligibility and exclusions?
  • What is the pre-existing and stability clause?
  • What are the benefit limits?
  • How many days am I covered?
  • Is there a deductible?
  • Do they offer upfront payment if a claim occurs?

It’s important to remember that the intent of travel medical insurance is to treat emergency conditions, and return you to your home province for ongoing treatment once your medical condition is stabilized.

Emergency travel medical insurance may require completion of a medical health questionnaire depending on age. Medical questionnaires determine premium, NOT coverage.

    • Always answer questions related to your health accurately
    • If you aren’t sure how to answer, ask your physician to help you.

For more information resources on travel insurance and what you need to know before you travel, go to: https://www.caasco.com/insurance/resource-centre/travel.

About CAA South Central Ontario
For over a hundred years, CAA has been helping Canadians stay mobile, safe and protected. CAA South Central Ontario is one of nine auto clubs across Canada providing roadside assistance, travel, insurance services and Member savings for our over 2 million Members.

SOURCE CAA South Central Ontario

For further information: Nadia Matos, Media & PR Consultant, P: (905) 771 3058, C: (416) 523-0663, E: nm12@caasco.ca; Kaitlynn Furse, Director of Communications, P: (905) 771-3194, C: (647) 227-7559, E: kfur@caasco.ca

Related Links

http://www.caasco.com/

Twelve Days of Christmas Scams

Christmas is quickly approaching, and although the holiday is associated with cheer and generosity, scammers are in full force, ready to take advantage of unwary individuals who can be easily duped.

In the spirit of the popular holiday tune, Better Business Bureau wants people to be aware of the 12 scams of Christmas. These frauds and cons are common during the holiday season, and being alert can save clients from the negative repercussions of these frauds during the otherwise jolly holiday season.

Click through the following slides for Better Business Bureau’s 12 Days of Christmas Scams.

On the twelfth day of Christmas, a scammer gave to me:

Twelve malware e-cards

During the holidays, people love to spread the cheer, sometimes in the form of holiday e-cards. But viruses and malware often travel in e-mail attachments or links.

Better Business Bureau advises deleting e-mails from people whose names you don’t recognize. When in doubt, delete the e-mail or e-card. It is better to take caution than to fall victim to a corruptive virus.

Eleven stranded grandkids

Family is important, especially around the holidays. Scammers, however, can take advantage of this, utilizing what the Better Business Bureau characterizes as the “classic grandparent scam.”

If someone calls or sends an email pretending to be a grandchild, relative or friend, claiming they were robbed or harmed overseas, asking for money, check to verify that it is true before taking action.

Ten counterfeit gifts

Everybody likes a good deal, but low prices on luxury goods almost always means that the product is a cheap counterfeit.

Be careful while holiday shopping this year, especially online. Counterfeit transactions are illegal and harmful for brand owners and can leave customers dissatisfied.

Make sure that you purchase goods from a credible merchant. Read our article Safety Tips for Cyber Monday for online shopping strategies.

Nine pockets picked

Cold weather means bundling up. But with some of the extra padding of a puffy coat, we may not notice pickpockets who are willing to take advantage of the situation.

While out and about this holiday season, keep your purse or wallet secure. Better Business Bureau also warns against putting shopping bags down, even for a moment. Experienced thieves are waiting for the perfect moment to snatch up any valuables.

Eight stolen gift cards

Gift cards can be the perfect gift: easy to buy and are usually a big hit with recipients. However, make sure that you are purchasing gift cards from a reputable dealer.

Scammers can sell you a card and use the funds, even before you have the chance to give the card as a gift, the Better Business Bureau claims.

Seven fake coupons

Buying so many gifts during the holiday season, it is no surprise that many look to coupons to save a little cash, but Better Business Bureau suggests that people use caution when downloading coupons.

A retailer’s website is the best place to find coupons, and be wary particularly if a website asks for personal information.

Six Santa scammers

Receiving a letter from Santa Claus can be the highlight of the Christmas season for a young child, but these websites could put you at risk for identity theft.

Before entering any personal information, verify that the site is real, and not just gathering data to commit fraud.

Five fake charities

The Christmas season is about generosity, and many charities thrive on end-of-the-year giving as part of their annual income.

Although Better Business Bureau encourages charity, be careful when giving this holiday season. Scammers set up fake charities that have names that often sound legitimate or are similar to popular charities. Verify the organization before you make a charitable donation this Christmas.

Four bogus websites

For those who do not know what to look for, it can be almost impossible to differentiate a real website from a bogus one.

It is easy for a hacker to mimic a real website. A red flag is if a website reads “http” in the address bar instead of the more secure “https.” Additionally, if contact information is not listed, or they are asking for a payment by wire or money card, look for verification that the website is not a fraud.

Three travel scams

Travelling during the holidays can get pricey, so airfare bargains can be tempting. But this is just another way that scammers can take advantage of unsuspecting travellers.

Be cautious when booking travel through an advertisement online, and never wire money to someone you do not know. Using trusted travel agencies or websites recommended by friends and family members can ensure that you will not fall victim to travel scams.

Two phony loves

Everyone wants someone special to share a kiss under the mistletoe or as the ball drops on New Year’s. But for those looking for love online, the holidays are a prime time for scams.

Be careful when finding an online sweetheart, especially with an online match that that gets cozy too fast and asks for money, the Better Business Bureau warns.

… And a totally fictitious puppy

There may be no better gift than a cute and cuddly puppy, but be careful when buying a pet online.

Scammers take advantage of those who want to give puppies for the holidays. Sometimes these puppies can come from puppy mills, and could have serious health problems. Other scams could involve paying for the pet online, but never receiving the puppy because it was all a scam.

If you decide to give man’s best friend for Christmas, find a reputable breeder or local rescue league to avoid being burdened by an online con.

Excerpted article by Hannah Bender, PropertyCausualty360

 

Injured veteran’s insurance benefits halted over questions whether she can work

The excerpted article was written by Ben Cousins CTVNews.ca 

TORONTO — An injured veteran had her insurance benefits temporarily pulled just days before Christmas after she says Manulife mistakenly determined she was capable of working.

Kelsi Sheren served in Afghanistan in 2009 and was medically released from the Canadian military in 2011. She founded the jewelry company Brass and Unity in 2016, but says she does not take a paycheque from the business and instead uses it as a way of coping with her post-traumatic stress disorder.

“I’m not employable and that’s why I do what I do,” she told CTVNews.ca in a phone interview.

“I’m just the face of it, because it’s my story that the company’s built on,” she added. “This is my therapy. This isn’t anything else.”

Sheren said she recently received a call from Manulife, where the representative told her that her insurance payments would be taken away because it appeared she had a successful business.

“I won’t be able to pay my mortgage and I have a three-year-old son right before Christmas,” she said on Monday.

Sheren receives payments through Manulife’s Service Income Security Insurance Plan (SISIP), which offers income protection to military members who are released for medical reasons or who qualify as being “totally disabled.” The plan is also designed to provide skills training to military members with the goal of obtaining gainful employment.

“We pay into this. We’re owed this,” Sheren said. “They put all these stipulations on you and if you don’t follow them, they drop just you. That’s how quick it happens.”

After CTVNews.ca reached out to Manulife, Sheren was informed that her benefits would be reinstated, but only until the New Year, where they would then be “re-evaluated.”

In a phone interview, Manulife spokesperson Shabeen Hanifa said the company has been in contact with Sheren, but is unable to comment on the situation.

“We strive to do everything within our powers to serve our customers and we have been in ongoing contact with this particular plan member to provide the appropriate assistance,” she said. “We do take the responsibility of protecting the privacy of our customers very seriously and so we can’t discuss the specific details of any individual.”

Brass and Unity offers a variety of fashion accessories, but is most known for creating bracelets and necklaces featuring recycled shell casings. Twenty per cent of net profits are sent to veterans and charities that support veterans, while the remainder goes back into the company.

On Tuesday, Brass and Unity was featured on the CBS daytime television program “The Doctors.”

Sheren believes Manulife cut her SISIP payments because these television appearances and her public persona make it look like she gets paid by a successful business, while her medical records and tax returns indicate otherwise.

“They Googled me and made their decision based off of outside perception of what social media looks like, instead of looking at my doctor’s eight years of paper work,” she said.

Sheren said that while she can handle this situation, losing these payments could be life-threatening for some of her fellow veterans who are in a worse position.

“I’ve got enough of a support system and fortunately I have that, a lot of people don’t,” she said. “This is a chronic problem that nobody talks about.”

“What if this was somebody that (Manulife) called and did this to and they had nowhere to go?”

LifeLabs releases open letter to customers following cyber-attack

TORONTO, Dec. 17, 2019 /CNW/ – LifeLabs is releasing the below open letter to its customers in Canada, following a recent cyber security-attack.

To our customers:

Through proactive surveillance, LifeLabs recently identified a cyber-attack that involved unauthorized access to our computer systems with customer information that could include name, address, email, login, passwords, date of birth, health card number and lab test results.

Personally, I want to say I am sorry that this happened. As we manage through this issue, my team and I remain focused on the best interests of our customers. You entrust us with important health information, and we take that responsibility very seriously.

We have taken several measures to protect our customer information, including:

  • Immediately engaging with world-class cyber security experts to isolate and secure the affected systems and determine the scope of the attack;
  • Further strengthening our systems to deter future incidents;
  • Retrieving the data by making a payment. We did this in collaboration with experts familiar with cyber-attacks and negotiations with cyber criminals;
  • Engaging with law enforcement, who are currently investigating the matter; and
  • Offering cyber security protection services to our customers, such as identity theft and fraud protection insurance.

I want to emphasize that at this time, our cyber security firms have advised that the risk to our customers in connection with this cyber-attack is low and that they have not seen any public disclosure of customer data as part of their investigations, including monitoring of the dark web and other online locations.

We have fixed the system issues related to the criminal activity and worked around the clock to put in place additional safeguards to protect your information. In the interest of transparency and as required by privacy regulations, we are making this announcement to notify all customers. There is information relating to approximately 15 million customers on the computer systems that were potentially accessed in this breach. The vast majority of these customers are in B.C. and Ontario, with relatively few customers in other locations. In the case of lab test results, our investigations to date of these systems indicate that there are 85,000 impacted customers from 2016 or earlier located in Ontario; we will be working to notify these customers directly. Our investigation to date indicates any instance of health card information was from 2016 or earlier.

While you are entitled to file a complaint with the privacy commissioners, we have already notified them of this attack and they are investigating the matter. We have also notified our government partners.

While we’ve been taking steps over the last several years to strengthen our cyber defenses, this has served as a reminder that we need to stay ahead of cybercrime which has become a pervasive issue around the world in all sectors.

Any customer who is concerned about this incident can receive one free year of protection that includes dark web monitoring and identity theft insurance. For more information and to learn more on how to sign up for cyber security protection services, please visit https://customernotice.lifelabs.com.

Yours sincerely,

Charles Brown

President and CEO
LifeLabs

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