In the Media: Sandra DiMeo Quoted in “Law Times”

Sandra DiMeo of Ferguson DiMeo Lawyers was recently quoted in the May 6, 2013 edition of Law Times in an article entitled “Bar Reacts to First Case on Minor Injury Guideline” written by Judy Van Rhijn.  The article discusses the reactions of plaintiff personal injury lawyers to the decision in Scarlett v. Belair Insurance Company Inc. which was released last March by the Financial Services Commission of Ontario.   The decision is the first to be released regarding the Minor Injury Guideline and is a victory for those that may be inappropriately placed within the Guideline.   

 

Excerpt from the article:

 

Sandra DiMeo of Ferguson DiMeo in St. Thomas, Ont., believes insurance companies have been categorizing people without giving much thought to the process.  “The decision on the [guideline] is made at such an early part of the process when there is not much medical evidence.  Now they have to continuously re-evaluate as new information becomes available”. 

 

To read the full article, please visit the Lawyers Weekly website.  (subscription required) 

First Decision on the Minor Injury Guideline Released!

On March 26, 2013, the very first decision regarding the Minor Injury Guideline (“MIG”) was released by the Financial Services Commission of Ontario, Scarlett v. Belair Insurance Company Inc. , F.S.C.O.  A12-001079. 

 

This decision is a very important step forward for those who have been injured in a motor vehicle accident and who have been placed within the MIG by their insurer. 

 

The MIG requires “compelling evidence” that an insured has a pre-existing condition that will prevent them from reaching maximum medical recovery if they were to be limited to treatment within the MIG.   In addition, the obligation of providing this compelling evidence lay with the insured’s health care professionals.  Until now, what would satisfy this requirement was largely unknown since “compelling evidence” is not defined within the MIG.  With the release of the decision in Scarlett however, we now have some guidance as to what would constitute “compelling evidence”.  Arbitrator John Wilson states that, to satisfy this requirement, health care professionals must provide “credible or convincing evidence if they wish to ensure that the insured is treated as being outside of the MIG”.    

 

In addition and perhaps more importantly, the decision in Scarlett states that an insurer must continue to re-evaluate the claim as more information becomes available to determine if continued application of the MIG is appropriate. 

 

On the last page of the decision, Arbitrator Wilson states:

 

 “The insurer is in effect mandated to make an early determination of an insured’s entitlement to treatment beyond the MIG.  In essence, because of the necessarily early stage of the claim when the MIG is applied, the determination must be an interim one, one that is open to review as more information becomes available.

 

What it is not is the “cookie-cutter” application of any expense limit in every case where there is a soft tissue injury present.  Such does not respond to either the spirit of the accident benefits system or the policy enunciated in the Guideline of getting treatment to those in need early in the claims process.

 

While it is quite possible that the majority of claimants can be accommodated within the MIG, averages are misleading when applied to individual cases.  Each case merits and open-minded assessment, and an acceptance that some injuries can be complex even when there are soft tissue injuries present amongst the constellation of injuries arising from an accident.”

 

Insurers must recognize that just because an individual has suffered soft tissue injuries does not necessarily mean that treatment automatically falls within the MIG.

 

Hopefully the decision in Scarlett will alter the rather inflexible approach that insurers have taken with their application of the MIG to date. 

 

No-Fault Insurance, Accident Benefits and the Right to Sue

One of the first questions that I am asked by individuals who have been injured as a result of a motor vehicle accident is:  “Can I sue the other driver responsible for the accident and my injuries?”  My answer is typically “It depends”, followed by an explanation as to how the insurance system in Ontario works. 

 

In Ontario, we have what is commonly referred to as “no fault insurance”.  Under the no-fault system, an individual who has been injured in a car accident must turn to their own automobile insurer first and apply for accident benefits.  Every automobile insurance policy in Ontario provides coverage for medical treatment and rehabilitation and a number of other benefits.  Which accident benefits you are entitled to will depend on a number of factors, including: the severity of your injuries, how those injuries impact on your daily life, and in some cases, it will depend on whether you paid an additional premium for optional benefits. 

 

The Right to Sue

 

It is possible to sue the other driver and the owner of the motor vehicle responsible for the accident for pain and suffering and loss of enjoyment of life, future health care costs provided that certain requirements are met.  You may also sue for any economic losses or out of pocket expenses that have not been reimbursed by your insurer.   There is a limitation period for starting a lawsuit and so, it is important that you consult with an experienced personal injury lawyer as soon as possible to discuss your rights.   

 

Pain and Suffering

 

A claim for pain and suffering and/or future health care expenses can only be advanced if you meet the verbal threshold of having suffered a “permanent serious impairment of an important mental, physical or psychological function”.   In some cases, it is clear that the verbal threshold has been met but in the vast majority of cases, it is not an easy question to answer.  In most cases, the answer requires a very thorough review of your medical records by a doctor (often a specialist) who can then provide his or her expert opinion on whether the verbal threshold has been met.  In complex cases, it is not uncommon to obtain an expert opinion from more than one doctor who have different areas of expertise.  In addition, there is deductible that applies to awards of damages for pain and suffering that are $100,000 or less.  At this time, the deductible is $30,000.00. 

 

Family members may sue for loss of care, guidance and companionship, but again, the injured person must meet the verbal threshold for his or her family members to succeed in a claim for loss of care, guidance and companionship.  A deductible also applies to awards of $50,000.00 or less and currently, that deductible is $15,000.00 per claimant.    

 

Out of Pocket Expenses and Economic Losses

 

If you have been injured in a car accident, you may also sue for any out of pocket expenses and economic losses such as loss of income provided that you have not been reimbursed by your insurance company.  Unlike claims for pain and suffering or claims for loss of care, guidance and companionship, there is no threshold that applies to these types of losses and there is no deductible. 

 

Please contact Sandra DiMeo if you have questions about your rights following a car accident.

Accident Benefits and the Minor Injury Guideline

Over the last couple of years there has been much talk in the media about the changes in the Ontario automobile insurance system.  On September 1, 2010, the entire system underwent a significant overhaul.  For many, the significance of these changes is not fully understood until such time as they or a loved one has been injured in an accident. 

 

The most significant changes were to the accident benefits system, a bundle of benefits that is available to individuals who have been injured in a motor vehicle accident.  Over the next few months, I hope to more fully explain what the changes to the accident benefit system have been.   

 

Of all the changes to the accident benefit system, the most dramatic has to be the introduction of the Minor Injury Guideline because it captures the vast majority of accident claims.  The Minor Injury Guideline limits the amount of money that is available from your automobile insurer to pay for medical treatment and rehabilitation for injuries that are predominantly considered minor.  The maximum amount payable under the Guideline is $3,500.00.[1]  By contrast, if an injury is not considered minor, medical and rehabilitation benefits are available up to $50,000.00 for up to ten years after the accident (or up to $100,000.00 if optional coverage has been purchased). 

 

What is a Minor Injury? 

 

The Minor Injury Guideline, defines a minor injury as:

 

(a)         Sprain – an injury to one or more tendons or ligaments, including a partial but not a complete tear;

 

(b)         Strain – an injury to one or more muscles, including a partial but not a complete tear;

 

(c)         Whiplash associated disorder – a whiplash injury that does not exhibit objective, demonstrable, definable and clinically relevant neurological signs AND does not exhibit a fracture in or dislocation of the spine;

 

(d)         Contusion;

 

(e)         Abrasion;

 

(f)          Laceration; or

 

(g)         Subluxation (a partial but not a complete dislocation of a joint);

 

(h)         and any associated sequelae (any condition or complication that arises from any of the above injuries).[2] 

 

 

Not all Minor Injuries are Considered Minor

 

If your injury is predominantly a minor injury but there is compelling medical evidence that you  have a pre-existing condition that will prevent you from reaching maximum medical recovery if you are limited to the $3,500 cap, then the Guideline will not apply.  As a result of this, it is important that you provide a complete medical history to your treatment providers so they can properly assess whether your injury should be treated within the Guideline or if it would be more appropriate to treat in the ordinary medical and rehabilitation benefit stream.

 

If you have been injured in a motor vehicle accident and have any questions about the Minor Injury Guideline, or your rights in general, please contact Sandra DiMeo. 



[1] Insurance Act, R.S.O. 1990, c.I.8,  O.Reg. 34/10, s.18

[2] Financial Services Commission of Ontario, Superintendent’s Guideline No. 02/11