Transit Connection

“No crash, no cash,” was how Toronto lawyer Tamara Broder summarized Ontario’s law governing claims for no-fault benefits involving public transit vehicles.

This exception — little known to insurance adjusters — should be used more often, Broder, a lawyer with the Toronto Transit Commission (TTC), and Philippa Samworth, a partner at Dutton Brock LLP, suggested during an all-day seminar in Toronto on November 27.

If an insured makes an accident benefit claim to his own insurance company for injuries sustained on a public transit vehicle that were not the result of a collision, “that insurer can avail itself, and should avail itself, of this exception,” Broder said during the Law Society of Upper Canada’s Twelve-Minute Accident Benefit Insurance Litigator seminar.

The exception relates to an amendment to section 268 of Ontario’s Insurance Act, which came into force May 12, 2011:“(1.1) …no statutory accident benefits are payable in respect of an occupant of a public transit vehicle, in respect of an incident that occurs on or after the date this subsection comes into force, if the public transit vehicle did not collide with another automobile or any other object in the incident.”

The tradeoff for getting the benefit of the exception, Broder pointed out, is that a plaintiff in tort no longer will be required to establish a threshold, and there will be no deductible for general damages.

ACCIDENT CLAIMS DOWN

Before the revised section took effect, statistics compiled by the TTC showed 73% of accident benefit claims arose in the absence of a collision, Broder reported.

Of those, there were many dubious claims with subjective injuries, and multiple claims by the same persons, she added. Often, these injuries were not reported until weeks later and involved conditions such as chronic pain and whiplash. In addition, the person reporting the condition was the only passenger to do so, either at the time or subsequently.

Specific examples of dubious, subjective claims have followed different situations: a claimant reported being elbowed by another passenger on a transit vehicle; the vehicle stopped abruptly; the vehicle door closed on the person’s foot or hit the person while closing; the individual slipped and fell; or the person bumped into a pole when the vehicle started.

Since the amendment, the results have been “quite astonishing” with accident benefit claims dropping by approximately 70%, Broder said.

As a result of the “exception,” the TTC has saved $6 million to $7 million in payouts in accident benefit claims over the first three quarters of 2012, she said.

To date, there has not been a spike in tort claims, Broder pointed out, suggesting that this may be because the claimants no longer have the same incentive to stay off work and do not have accident benefits’ funding.

Broder emphasized, however, that tort claims that have “merit or serious injury” are being advanced.

Although the phrases “collide with” and “or any other object” are not defined, she said the TTC has not had many grey-area claims. The commission is taking “a common-sense approach that a curb is part of a road, that an object is a pole,” she said.

The TTC sometimes has the benefit of video downloads from its vehicles, something that should clear up some of those situations, Broder added. 

EXAMINATION UNDER OATH

The seminar also featured a discussion of Examinations Under Oath (EUO). Pursuant to section 33 of the Statutory Accident Benefits Schedule (SABS), only insurers can examine an insured under oath, noted plaintiff lawyer Alexander Voudouris, a senior litigator with Pace Law Firm in Toronto.

“I would love, I would relish, the opportunity to examine under oath an insurer adjuster and help them substantiate my claim for a special award,” Voudouris said. “But we are not afforded those rights.”

Voudouris made several references to Aviva Insurance Company of Canada v. Balvers, a 2007 decision by Ontario’s Superior Court of Justice, in both his remarks and a written paper. (In that case, claimant’s counsel had refused to allow certain questions — such as the applicant’s current address, employment status, employer and medical treatment — to be answered at an EUO. As a result, the insurer brought an application to determine the nature and scope of its rights).

With regard to the scope of allowable questions in an EUO, Voudouris said the court in Balvers “ruled, in my opinion, that essentially anything goes.”

For example, the question about the claimant’s current address was ruled to be relevant in terms of his entitlement to accident benefits, Voudouris said, but added, “I’m not quite sure how that really follows.”

Voudouris pointed out the only consequence of failing to attend an EUO is cessation of a benefit or all benefits, and not the adjournment of the arbitration hearing. However, if the insurer does not do everything properly in the notice, an EUO is not deemed to have been properly scheduled.

There are apparently no time lines under which an EUO must be requested or conducted, Voudouris said. Although not raised in Balvers, he said he would rely on section 36 of the SABS, that may be modified by section 32(10), and he would vigorously resist requests by an insurer after one or two years to an EUO that deals with specified benefits (that is, income replacement benefits, housekeeping or caregiving claims).

EUOs are extremely beneficial to an insurer and equally detrimental to an insured, Voudouris commented. He encouraged plaintiff counsel to continue to challenge the scope of EUOs and resist them, but also cautioned counsel to “be careful because there are consequences.”

Defence lawyer Eric Grossman, a partner with Zarek Taylor Grossman Hanrahan LLP, spoke about a recent EUO conducted by someone in his office. On the record, Grossman reported, the paralegal acting for the claimant acknowledged he had authored some of the treatment plans that were in dispute, he was going to make personal gains from being a service provider, and he saw no conflict whatsoever in what he was doing.

Since the Law Society has taken over the monitoring and supervision of paralegals from the Financial Services Commission of Ontario (FSCO), things have gotten worse, Grossman argued. “FSCO was doing a reasonably good job of keeping in check the paralegals that were troublesome. They would even bar them from hearings and pre-hearings and acting where they perceived that they weren’t out for the best interests of the system,” he said.

ATTENDANT CARE

Changes are also currently taking place with regard to retroactive attendant care. Samworth pointed out that this is one of the most rapidly growing areas in her practice, adding she has had files where the claimant did not ask the insurer for retroactive attendant care benefits for as long as 20 years after an accident.

Samworth was counsel for the insurance company in T.N. and The Personal Insurance Company of Canada, a FSCO arbitrator ruling released last July 26.

In that case, the application for retroactive attendant care, by a claimant who had sustained a brain injury in a motor vehicle accident in October 2000, was sent to the insurer about six years after the accident occurred. The applicant did not request physical custodial care, but rather 24-hour “on call” or “phone” care, claiming that she needed to have someone available on the phone if she had questions about her judgment, Samworth said.

The insurer determined the claimant needed some attendant care — although not for 24 hours a day — and began making payments.

Issues at arbitration included T.N.’s claim
for retroactive on-call attendant care, Samworth reported. The arbitrator ordered, among other things, that the insurer must pay T.N. attendant care benefits from the date of the accident in October 2000 and ongoing, at the rate of $5,056.80 monthly, less any amounts already paid.

The arbitrator’s conclusions in T.N., if upheld on appeal, “may very well change the landscape of the way in which both insureds and insurers practice in terms of retroactive attendant care,” Samworth commented.