Toronto Injury Lawyer Blog
If you’ve been hurt or injured in a car accident, you are entitled to accident benefits from your own car insurer. These accident benefits are NOT damages for pain and suffering; nor are they compensation intended to make you whole for your attendant care, income loss, housekeeping claim, or loss of guidance, care and companionship with immediate family members.
Accident benefits are intended to help the injured accident victim get better following a car accident. They are also intended to supplement, to some form, for their income loss (up to $400/week) and attendant care (up to $3,000/month for non-catastrophic claims, and up to $6,000/month for catastrophic claims).
The problem lies herein. The insurance company supplying those accident benefits is typically your own car insurer; even though you or your insurer may have not even caused the car accident (hence the term no-fault benefits). But the accident benefit insurer gets to act as Judge, Jury and Executioner all in the same breath when determining which accident benefits they will pay, and which accident benefits they won’t pay.
If an insurer paid our on each and every claim, without contesting or opposing a treatment plan, they would not be nearly as profitable as they are today. Insurance companies are publicly traded corporations. Profits not only matter, but matter each and every quarter to ensure that the stock price increases for their share holders. Check the TSX for your favourite car insurers, which include but aren’t limited to Intact Insurance IFC.TO; Co-Operators General Insurance Company CCS-C; and Aviva PLC to name a few. The more money which insurers pay out to accident victims, the less money they get to retain in profit. That ultimately hurts their bottom line, and their share performance struggles on public stock exchanges.
If you were upset by the decision of your accident benefit insurer, you had proper recourse. Your first step was to apply for mediation with the Financial Services Commission. This was a FREE application to make. The result was that you would have either an in person, or telephone mediation, presided over by a real live mediator with actual experience mediating accident benefit disputes. While there was significant backlog in the mediation system, it worked…somewhat.
If the mediation was unsuccessful, you had the option of choosing 1 of 3 tracks for your case.
- You could do nothing, and the benefit would remain stagnant
- You could pay $100 and apply for Arbitration at the Financial Services Commission of Ontario. The Arbitration would take place in person, before a real live Arbitrator who had experience presiding over accident benefit claims. They knew what they were doing.
- You could sue your insurer at Superior Court, and have your case heard before a Judge alone, or a Judge and Jury. You would be subject to all of the rules of a normal civil litigation court case. Ultimately, you were entitled to, and you could have your day in Court.
Effective April 1, 2016 your right to apply for Arbitration, or to sue your own insurer has been taken away from you. Now, people with accident benefit disputes are forced to either do nothing, or apply to the License Appeal Tribunal or LAT. The LAT is the bastion where your accident benefit claim goes to die. Your right to having your day in Court has been stripped from you.
Here is a good example of how the LAT works, as enunciated in the decision of J.S. and Aviva Insurance Company Tribunal File Number: 16-002529/AABS
The reason I illustrate this case, is because it was argued by one of our personal injury lawyers, Afsoun Amirsolaimani. Afsoun did an excellent job advocating on behalf of our client, J.S. of London, ON.
In this case, J. S. had broken his leg in a car accident. He needed occupational therapy treatment following his accident. The physical/occupational therapy treatment plan prepared by Rehab First out of London, ON in the amount of $2,920.62.
Asking your own insurer to pay out $2,920.62 after you’ve broken your leg, so that you can recover isn’t a big ask. But, apparently, it was.
The treatment plan was dated August 4, 2016.
The in person LAT hearing took place on April 19, 2017.
The reasons for decision from the adjudicator were released on November 6, 2017.
That means from the date of the treatment plan, to the date of the decision, 459 days had elapsed, or 1 year, 3 months and 2 days. The notion that after you break your leg, you need to wait that long to hear from an adjudicator whether or not you can get treatment is appalling.
The adjudicator recognized that J.S. had anxiety issues, but this treatment plan in his opinion was more physical in nature, and less emotional.
The result: J.S. files another treatment plan; this time for more emotional therapy! Whether or not this plan gets approved or denied is irrelevant. All it shows is that the cycle of applications and denials or approvals starts again. More adversity. More confrontation between insurer and accident victim.
Instead of having an entire mini trial on whether or not a treatment plan valued under $3,000 is reasonable and necessary, perhaps the parties could have worked out a solution whereby J.S. got the treatment and care which should have been provided to him in the first place. But what the LAT has created is an adversarial forum for both insurers and plaintiffs to go to war over benefits, in an untimely manner. There are no or minimal cost consequences for losing or taking an unreasonable position at the LAT. So naturally, the party with deeper pockets (the insurer) has little incentive to settle, and every benefit to wait things out to leave the Plaintiff more desperate and destitute.
The LAT does provide for a Pre-Hearing, before the actual hearing takes place. This Pre-Hearing is supposed to be like a mediation. But in our experience, little gets done when it comes to achieving a settlement or a arriving at a creative resolution during these conferences. The hearing becomes the end result. And the party which needs the help the most; the innocent accident victim is left waiting for their hearing date just to get a bit of physio therapy after they’ve broken their leg in a car accident. This concept has never seemed right to me.
