Author: Neil Colville-Reeves

by Neil Colville-Reeves

Judge Orders “Hard-Balling” Insurer to Pay Costs 12 Times the Amount of Jury Award

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In Persampieri v. Hobbs, the Plaintiff was rear-ended by the Defendant and brought a tort claim for damages. Following a two week trial, the jury awarded net damages of $20,414.83. However, this case is significant for the costs award – roughly 12 times the amount awarded in damages!

Several months before trial, on March 21, 2017, the Plaintiff served a rule 49 Offer to Settle the action for $20,000.00, plus partial indemnity fees and disbursements. On May 15, 2017, about two weeks before trial, the Plaintiff served a further Rule 49 offer for $10,000.00, plus partial indemnity costs. Comparing the Offers to the jury award, the Plaintiff clearly “beat” the award. At the costs hearing, the Plaintiff sought the usual cost consequences under Rule 49.01(1). The Defence adamantly argued that to order costs as sought by the Plaintiff would be unreasonable and not proportional to the net award.

Justice Sanderson thought otherwise. According to Justice Sanderson, “to let proportionality be the overriding, or even the predominant factor, would be grossly unfair to the Plaintiff and would be to reward the uncompromising, and, (in the light of the jury verdict) unreasonable behaviour of the insurer.” She noted the Insurer took a hard line, despite admitting liability. From day one, the Insurer took the position that it had assessed the case on its merits and was not willing to offer even $1.00 towards settlement. The Insurer never budged from this aggressive stance.

Justice Sanderson noted that, in this case, the party trying to rely on the proportionality principle was a sophisticated insurer that had made a tactical decision to reject a Plaintiff’s Rule 49 Offer understanding the risk in costs that it was taking by doing so. Furthermore, because the Insurer had framed its defence in the manner that it had, it knew that the resolution of the issues at trial would involve the hearing of lengthy and costly evidence.

Ultimately, Justice Sanderson found no reason to depart from the usual cost consequences of Rule 49.01(1) and found the Plaintiff entitled to her costs on the partial indemnity scale to May 15, 2017, and to her costs on the substantial indemnity scale thereafter. The Court ordered costs of $237,017.50 – almost 12 times the net of the jury award!

This case is a serious warning to Insurers that “playing hardball” could well expose them to significant adverse cost consequences at trial, even where they are successful in limiting the plaintiff’s recovery to a very modest amount.

The decision is also notable for its thorough review of the case law on costs.

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by Neil Colville-Reeves

Bearing the Risk of Loss: Another Landlord Tenant Tale

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A fire at commercial premises is at the center of a dispute between the insurers of a landlord and tenant

in the recently reported decision of Imperio Banquet v. Alternative Access and Mobility. The lease

required the tenant to contribute its proportionate share of the landlord’s premiums for ‘public liability,

fire and other coverages’ insurance. Other parts of the lease made it clear that the Additional Rent paid

by the tenant was for ‘Building Insurance’. The tenant was also required to obtain insurance but only to

insure the property and operations of the tenant. Moreover the tenant’s repair obligations expressly

excluded the portions of the building which were expressly the responsibility of the landlord, ‘namely

the roof, foundation, structure, outside walls and unit heaters.’ The tenant paid the additional rent. The

landlord obtained the building insurance. When a fire resulted in damage to the building as a result of

the negligence of the tenant’s employee, the landlord’s insurer attempted to subrogate. The court

granted summary judgment to the tenant, referring to Ross Southward v. Pyrotech in finding that where

the tenant contributed to the insurance obtained by the landlord, the tenant should obtain the benefit

of that insurance as it was evident that the underlying lease shifted the risk of this type of loss to the

landlord. Contractual risk shifting cases are often tricky and a close read of the underlying agreement, in

this case the lease is critical to understanding which party was to bear the risk of loss.

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by Neil Colville-Reeves

Double Counting to Capture a Whole Person Impairment

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In Security National Insurance Co. v. Allen, Justice Fragomeni of the Divisional Court upheld the decision of Director Delegate Blackman’s , finding that when an organic brain injury and a psychological disorder separately result in emotional or behavioural impairments, they are both to be rated and then combined for the purpose of determining a WPI rating.

At arbitration, the issue was whether the claimant had sustained a 55% Whole Person Impairment (WPI) pursuant to the SABS. The Arbitrator concluded the claimant had a 52% WPI rating and therefore was not catastrophically impaired. In reaching this conclusion the Arbitrator did not provide a a Chapter 4 rating, finding that the Chapter 14 rating captured any mental and behavioral impairment. On appeal by the insured, Director’s Delegate Blackman rejected the insurers argument that rating under both Chapter 4 and Chapter 14 was double counting and remitted the questions of the insured’s rating for brain injury under Chapter 4 and the medication rating back to arbitrator for determination. He confirmed the Arbitrator’s other WPI ratings. With respect to brain injury and double counting, Director’s Delegate Blackman relied upon clause 2(1.2)(f) of the Schedule, which speaks of “an impairment or combination of impairments” – not “symptoms” as was used by the Arbitrator. Director’s Delegate Blackman decided that it was incumbent upon the Arbitrator to provide separate ratings under both Table 2 and Table 3 of Chapter 4 when one rating related to a Chapter 14 impairment. The more severe of the two would represent the appropriate level of cerebral impairment. This number would then be combined with the other impairment ratings using the Combined Values Chart.

On Judicial Review, the Divisional Court applied the standard of review of reasonableness to Director’s Delegate Blackman’s decision given it was made in the context of a specialized regime and one in which the Director’s Delegate has expertise.

The Court concluded that his decision was reasonable with regard to all three issues.

The Court also held that Director’s Delegate Blackman reasonably applied the two general principles that the Guides should be given a broad and liberal interpretation andhat whether a person has sustained a catastrophic impairment is an adjudicative and not a medical determination.

This case provides some further clarification on the issue of “double counting” in the context of WPI ratings. .

See Security National Insurance Co. v. Allen, 2017 ONSC 6779

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by Neil Colville-Reeves

Disabling Impairment Not Causally Related to Accident

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The Ontario Superior Court recently released a decision finding an injured Plaintiff did not meet threshold on the basis that a “disabling” impairment to the left shoulder was not causally related to the accident.

In Grieves v. Parsons, the Plaintiff was injured in a motorcycle accident on July 24, 2012. The Plaintiff sought past and future income loss and general damages for pain and suffering and loss of employment of life. The Defendants had previously admitted liability.

The primary issue was whether the Plaintiff’s impairments were caused by the accident or by other medical conditions that would have developed even if the Plaintiff had not been injured in the accident.

While the jury was deliberating, the Defendants brought a “threshold motion” for a declaration that the Plaintiff’s claim for general damages was barred on the basis that the Plaintiff had failed to establish that, as a result of the accident, he had sustained a permanent, serious impairment of an important physical, mental or psychological function.

After hearing the evidence, the jury awarded $61,000.00 for past income, $90,000.00 for future loss earnings (substantially less than the $738,000.00 to $866,000.00 that was claimed by the Plaintiff) and $50,000.00 for general damages. With respect to the threshold motion, Justice Charney considered the fact that the jury verdict reflected a result much closer to the position advanced by the Defence than to the position of the Plaintiff

Both parties presented expert evidence with respect to causation and threshold. The Plaintiff’s expert testified the Plaintiff’s ongoing symptoms were attributable to the accident and that the Plaintiff had sustained a permanent, serious impairment. However, Justice Charney preferred the evidence of the Defence’s expert that the Plaintiff ongoing symptoms were not related to the index accident.

Ultimately, Justice Charney concluded the Plaintiff did not meet threshold, stating that the evidence supported the Defence’s position that the Plaintiff stopped working in May 2017 because of pain in his left shoulder and that that pain was the result of left shoulder osteoarthritis that first presented itself prior to the index accident.

See: https://www.canlii.org/en/on/onsc/doc/2018/2018onsc26/2018onsc26.html?resultIndex=3

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by Neil Colville-Reeves

Standard of Care in the Context of Contractual Duties and Industry Practices

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In Mabe Canada Inc. v. United Floor Ltd., the Ontario Court of Appeal weighed in on the standard of care in the context of contractual duties and industry practices.

Mabe sustained damages when a drainage pipe that ran underneath a floor installed by United Floor caused a flood in Mabe’s warehouse. United Floor was hired by First Gulf to build the warehouse in 2004. First Gulf is not a party to the action. The flood was caused by two holes in the drainage pipe that ran below the concrete floor.

At trial, Mabe’s alleged that the holes were caused by United Floor when installing the floor. None of the building drawings showed a drainage pipe in the location where the damaged pipe was found. In addition, the pipe was installed much shallower than it ought to have been under industry standards.

The trial judge dismissed Mabe’s claim in negligence. The trial judge found that United Floor damaged the drainage pipe by puncturing it with a stake it used to brace its concrete floor. However, United Floor should not have anticipated that it was as shallow as it was. There was no reason for United Floor to be concerned that there would be a shallow pipe in the location where the damaged pipe was found. United Floor did not breach the standard of care.

Mabe submitted to the Court of Appeal that the trial judge failed to take into account the United Floor’s contractual duties in determining the standard of care; erred in his foreseeability analysis; and erred in failing to determine whether relevant industry practice was itself negligent and should not have been followed.

The Court of Appeal held that, although contractual duties may, in some circumstances, modify the standard of care that would otherwise apply, the trial judge’s findings precluded such a finding in this case. The contract required United Floor to notify First Gulf in writing if the subsurface conditions differed significantly from those specified in the contract. The trial judge found that United Floor should have been aware that a pipe ran underneath the floor, but he accepted expert evidence that the United Floor had no reason to foresee that the pipe would be at a shallow depth. As a result, the respondent’s duty to notify First Gulf under the contract did not arise.

The trial judge was held not to have erred in his foreseeability analysis. He accepted expert evidence offered by United Floor that there was no reason not to put a stake in the ground at the subject location. It was the plumber’s responsibility to alert First Gulf to the shallow depth of the pipe and First Gulf’s responsibility to notify United Floor. First Gulf failed to do so.

It was accepted by the Trial Judge that a flooring contractor would not have expected to have a pipe running through the subfloor at the position it was in. United Floor’s expert testified that drainage pipes would normally be set two to three feet into the subfloor, well below the reach of the 18 inch stakes used by United Floor. The trial judge rejected the Mabe’s expert evidence and found that there were no other factors that should have alerted United Floor to the possibility of puncturing a pipe.

The Court of Appeal held that, although it is clear that conformity with standard practice in an industry does not necessarily insulate a defendant from a finding of negligence, as the Supreme Court explained in Neuzen v. Korn, [1995], a practice will be judged negligent “only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession” – only where it is “fraught with danger”. Mabe’s expert provided the only evidence supporting the submission that industry practice was negligent in this case. But it was rejected by the trial judge, who preferred the evidence of United Floor’s experts in concluding that the United Floor had no obligation to do more than it did to determine the location of the drainage pipe. There was no basis for the Court of Appeal to interfere with the trial judge’s decision concerning the expert evidence and the weight to be attached to it.

See Mabe Canada Inc. v. United Floor Ltd. , 2017 ONCA 879 (CanLII)

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by Neil Colville-Reeves

But For… Everyone Else (Not Me!)

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In Sacks v. Ross, the Ontario Court of Appeal dealt with how to apply the causation test in medical negligence cases involving multiple tortfeasors.

Sacks suffered serious injuries arising from complications after a routine bowel surgery. An anastomotic leak occurred after surgery, which spilled into his abdominal cavity, but the discovery of the leak was delayed, and by the time treatment started, he was in septic shock. Ultimately, he was in a coma for several weeks and his legs were both amputated.

At trial, Sacks put forth that the delay and treatment caused his injuries, which were the result of cumulative errors made by the respondents, a team of doctors, nurses and Sunnybrook Hospital, who treated him after his bowel surgery. The respondents argued that the delay in diagnosis did not cause Sacks’ injuries – his injuries were actually caused by flesh eating disease, which could not have been diagnosed or treated when it first arose.

At trial, the jury found five of the defendants breached their respective standards of care, but none of the breaches caused the injuries. Sacks appealed, arguing that the trial proceeded on a mistaken understanding of the appropriate causation test, evidenced by improper jury questions and instructions. Sacks argued that in cases involving multiple tortfeasors, a “global but for” test for causation should apply.

Ultimately, the Ontario Court of Appeal dismissed the appeal. The Court followed the prior Clements decision, where the Supreme Court found that the “but for” test also applies in complex, multiple tortfeasor, negligence cases.

The Sacks decision is significant for the Court’s discussion of the causation test and how it should be applied in complex negligence cases. The Court reminded that the normal causal reasoning process follows three steps:

Step one: what likely happened in actuality – whether the delay in treatment led to the plaintiff’s injury?

Step two: what would have happened if the defendant had not breached their standard of care?

Step three: allocate fault amount the negligent defendants

The analysis requires the jury to analyze each event in the sequence of events, while ignoring any decision it might have made with respect to an earlier event.

To reflect the causal reasoning process, the court recommended framing the jury questions as follows:

1. Have the Plaintiffs proven, on a balance of probabilities, that a delay in treatment caused Sack’s injuries?
2. If yes to #1, have the Plaintiffs proven, on a balance of probabilities, that the delay resulting from [this defendant’s] breach of the standard of care caused or contributed to the injuries of Sacks?
3. If yes to #2, how did [this defendant] breach the standard of care?

Importantly, question #1 only asks the trier of fact to consider what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, without considering the presence or absence of any breaches of the standard of care. In contract, question #2 determines fault.

See Sacks v. Ross , 2017 ONCA 773 (CanLII)

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by Neil Colville-Reeves

Who Dunnit? Use the “But For” Test!

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In the FSCO Appeal Decision of State Farm and Sabadash (P16-00029), Director’s Delegate Evans conducts a thorough analysis of the key jurisprudence on causation in Canada of the key causation decisions: Athey v. Leonati (1996 S.C.C.), Resurfice Corp v. Hanke (2007 S.C.C.)., Clements v. Clements (2012 S.C.C.) and Monks v. ING Insurance Co. (2008 Ont. C.A.) and confirms that the “but for” test is the primary causation test for SABS litigation.

Delegate Evans set out that the “material contribution to risk” test could still be applied but only once the claimant passed the “but for” test, such that there can be no fallback to use the “material contribution” test if the claimant fails the “but for” test. As a result, the “material contribution” test only becomes relevant in the rare circumstances where an accident alone and a pre-existing condition alone could have directly caused an impairment. Similarly, the de minimis test may only play a role after the “but for” test has been answered in the affirmative.

While this decision provides some much needed clarity for decisions where causation is in dispute, it may not be the final word on the subject since the claimant in Agyapong v. Jevco has filed for Judicial Review.

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by Neil Colville-Reeves

Div Court Lets LAT Iron Wrinkles

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The Ontario Divisional Court has weighed in on an application under the JRPA for a stay of LAT proceedings pending a review of 2 rulings refusing the insurers requests for an adjournment.

In Taylor v. Aviva there was a threshold legal issue as to whether the claimant was involved in an ‘accident’. After the case Conference, and facing an unexpected affidavit in a written hearing proceeding, the insurer sought an adjournment of the case in order to cross examine the affiant and was denied. Twice. With no substantive reason provided. The insurer turned to the Divisional Court for relief and in particular a stay of the proceeding pending judicial review of the refusal to grant the adjournment. It was argued that there was a serious issue to be tried (relating to procedural fairness) and that irreparable harm would result if the stay was not granted.

The Divisional Court ‎didn’t buy it. Not only did they not accept the arguments regarding the serious nature of the issue to the insurer they found that the insurer’s application was premature because they had not exhausted all of the remedies available in the LAT such as a Request for Reconsideration. Importantly the court noted the importance of allowing a relatively new tribunal such as the LAT the opportunity to ‘iron out wrinkles in procedural issues’ and to let it do ‘what the legislature directed it to do’ – to provide a dispute resolution mechanism that is fair, efficient and proportional.

See Aviva Canada Inc. v Taylor , 2017 ONSC 2661 (CanLII)

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by Neil Colville-Reeves

Credibility is Vital

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In MK v Dumfries Mutual, LAT adjudicator Jeanie Theoharis stated that “in arbitration hearings an Applicant’s credibility is vital, particularly where there are competing medical opinions”.

The adjudicator looked closely at the Applicant’s self-reports, surveillance, the clinical notes and records of the Applicant’s treating doctors and the content and quality of assessor’s reports for internal consistency and consistency with known facts. The adjudicator found there was a contradiction between surveillance and the statement given by the Applicant; that the Applicant’s psychological assessment was unreliable; and, that the Applicant’s self-reports were not supported by the records of her treating doctors.

Ultimately the adjudicator held that the Applicant’s injuries fall within the Minor Injury Guideline and that she is not entitled to income replacement benefits.

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by Neil Colville-Reeves

Overpayments – Recovery, Timing and Notice

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The year 2016 was not all that bad: The Superior Court finally provided some much needed guidance on whether an insurer can recover an overpayment made to an insured under the SABS. Justice Perell in Intact Insurance Company v. Marianayam shed some light on this ambiguous area of law.

Overpayments commonly occur when an insured person is paid an income replacement benefit and subsequently receives Long Term Disability benefits (LTD) or Canada Pension Plan benefits (CPP), which are deductible under the SABS.

The recovery of overpayments is governed by section 52 of the SABS-2010 (see section 47 of the SABS-1996). It provides that an insurer may recover benefits that were paid to an insured in error or if the insured was disqualified from receiving benefits. This is, of course, only if the overpayment is not a result of willful misrepresentation or fraud. One of the most controversial aspects of this law is subsection 52(3) of the SABS-2010 (section 47(3) of the SABS-1996), which requires the insurer to give notice of the amount that is required to be repaid.

The notice requirement was introduced in the 1996 amendments to the SABS. Subsequently, a body of case law has developed around the timing and content of this notice.

With respect to timing of notice, the Superior Court in Marianayam has helped clarify this area of law by upholding the Director’s Delegate decision in Pries v. Economical Mutual Insurance Company 2, and confirming that an insurer can only recover an overpayment made within 12 months of giving notice. In Pries, Economical took issue with the term “payment” in s.47 (3) of the SABS, and with the phrase, “within the 12-months after the payment was made”. Economical argued that they should be able to recover the full amount of the overpayment. However, Directors Delegate Evans was not persuaded and ultimately held that an insurer can only recover an overpayment made within 12-months of giving notice and awarded Economical 12 of the 16 months of overpayments. To put it another way, the amount of the repayment is capped at one year before the demand and there is no recovery for any payment made more than 12 months before the repayment notice was made.

The Superior Court in Marianayam also weighed in on what constitutes proper notice under the SABS. In doing so, Justice Perell upheld the controversial decision of Knechtel v. Royal SunAlliance, where Arbitrator Sampliner held a valid notice letter must contain:

1. The name of the specific benefit(s) the insurer claims has overpaid;
2. A statement of the appropriate weekly/monthly or lump sum amount sought;
3. The payment date of applicable time span of the specific benefit(s) it has paid and seeks repaid; and
4. Calculation of the total repayment claim;

Justice Perell stated that the amount claimed in the insurer’s notice letter “need not be perfectly correct but should be substantially correct.” While this may sound simple enough, Justice Perell determined that Intact’s first two notice letters failed comply with the Knechtel requirements.

In Marianayam, Intact claimed reimbursement for overpayments made to the Claimant between 2007 to 2015 as a result of the Claimant’s receipt of retroactive LTD benefits and CPP benefits.

Intact’s first letter sought $69,000 or 170 weeks of IRBs although the applicable statute provided for repayment of only 12 months (52 weeks). Justice Perell stated that Intact should have only indicated in their letter a demand for 12 months of payments. As a result, Justice Perell found the amount requested was not substantially correct; it was grossly incorrect. Therefore, the first notice was not considered proper notice and could not be relied upon.

Intact’s second letter indicated its legal position and advised that an accountant had been retained to calculate the quantum of the repayment. Justice Perell found that this letter also failed to satisfy the notice requirement, as the amount of the repayment was left undetermined.

Finally, Justice Perell accepted a subsequent letter that enclosed Intact’s accounting report as a proper notice. Justice Perell accepted the letter and report as notice, since it came close to calculating the correct amount of the overpayment and only erred by making a claim for 14-months of overpayments rather the limit of 12-months.

Interestingly, Justice Perell did not order repayment of CPP amounts. Intact’s accounting report included the CPP benefits in its overpayment calculation; however, Intact’s letter did not specifically request repayment of CPP benefits. Therefore, Justice Perell found Intact was not entitled to the CPP payments.

Given that Justice Perell did not define “perfectly correct” and “substantially correct”, we are left guessing when a particular notice falls on the spectrum between perfect and substantially correct. Nevertheless, it is fair to say that the evolving jurisprudence regarding overpayments has made it more difficult for insurers to recover overpayments. However, the Marianayam decision has provided much needed guidance on how to recover overpayments successfully. When faced with an overpayment situation, insurers must act quickly to identify and provide notice of any overpayment within 12 months or they may lose the right of recovery. Insurers must also ensure their notice contains the Knechtel requirements and the amount sought must comply with the statute.

See Intact Insurance Company v. Marianayam , 2016 ONSC 1479

[2] Pries v. Economical Mutual Insurance Company, FSCO A11-002004, September 21, 2012; Economical Mutual Insurance Company v. Pries, FSCO Appeal P12-00036, July 8, 2013

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by Neil Colville-Reeves

FSCO supports Insurers’ rights to broad section 44 examinations

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The recent FSCO preliminary issue decision of Arbitrator Rogers in Deschambault v. Wawanesa Mutual Insurance Company (October 2015) confirms that an Insurer has a prima facie right to schedule examinations under section 44. It also confirms that the Insurer controls the examination process and an Insured does not have a right to impose his/her own terms upon the examination.

The Insured, Robert Deschambault, attended a multidisciplinary insurer examination in January and February 2013, about one year post-accident, to address non-earner benefits. Following the examination, his non-earner benefits were terminated on the basis of the assessors’ opinions. In late 2013, the Insured submitted an updated Disability Certificate suggesting he still met the test for non-earner benefits. He also submitted a significant amount of new medical documentation in support of his position. The Insurer determined that it required further section 44 assessments and notified the Insured in accordance with the SABS. However, the Insured refused to attend unless Wawanesa agreed to limit the assessments on the basis of terms proposed by him. Among other things, the Insured demanded that the assessments be limited to the consideration of new medical productions only and imposed a one hour time limit. Wawanesa refused to agree to the terms proposed by the Insured and the Insured refused to attend the assessments.

This matter proceeded to a preliminary issue hearing in writing. Wawanesa took the position that the requested assessments were reasonably necessary, that the Insured’s failure to attend the assessments was unreasonable, that the FSCO arbitration should be stayed until the Insured attended the assessments and that the Insured was precluded from claiming non-earner benefits due to his failure to attend the assessments.

The Arbitrator agreed with Wawanesa that the assessments were reasonably necessary. In his analysis, he recognised that procedural fairness is now considered an overriding consideration when determining if an examination is reasonably necessary.

The Arbitrator rejected the Insured’s argument that the use of a company to co-ordinate the assessments was not permitted by the SABS in light of the fact that the assessors themselves were regulated health professionals. The Arbitrator rejected the Insured’s proposal that only new medical productions be considered. He also rejected the proposed one hour time limit. He stated that the Insured’s proposed limitations were not a reasonable restriction of Wawanesa’s rights of examination, which are quite broad. He also rejected the Insured’s proposal that Wawanesa be limited to obtaining only one copy of the assessment report and requiring Wawanesa to obtain consent from the Insured to request any further copies of the assessment report. The Arbitrator stated that this condition would prevent Wawanesa from being able to request additional paper review assessments, if necessary, which ran contrary to the Insured’s principal position that in-person examinations should be avoided.

The Arbitrator ultimately concluded that Wawanesa’s requested examinations were reasonably necessary, without terms, and that the Insured had failed to attend. As a result of this non-attendance, the arbitration was stayed until the Insured attended, as it would be unfair to Wawanesa to continue without the additional opinions sought. While the Arbitrator also stated that Wawanesa may rely on section 37(7) to refuse to pay non-earner benefits until the Insured attended, he refused to make a decision on whether the Insured’s refusal to attend was reasonable, as required by section 37(8).

As noted above, this case confirms that Insurers have the right to control the section 44 examination process without undue restrictions being placed on the process by Insureds. However, it is still important for Insurers to always deal with Insureds in good faith, to provide reasons why any proposed restrictions are considered unreasonable in the particular circumstances of each case and to ensure that they meet the requirements for assessment requests outlined in the SABS.

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by Neil Colville-Reeves

Update on the MIG Protocol Project

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BACKGROUND: INCEPTION OF THE MINOR INJURY TREATMENT PROTOCOL PROJECT (MITPP)

The FSCO Superintendent’s 2009 Five Year Review recommended the development of a minor injury treatment protocol that reflected current scientific and medical literature. [1] This recommendation was accepted by the Ontario government and confirmed in the 2012 Budget. [2]

Dr. Pierre Côté was awarded the consulting contract to spearhead the development of a new Minor Injury Treatment Protocol. Dr. Côté is an Associate Professor in the Faculty of Health Sciences at the University of Ontario Institute of Technology.

The team that was assembled to develop the new protocol is known as the Ontario Protocol for Traffic Management (OPTIMa) Collaboration. This multidisciplinary team of practitioners, academics, scientists, insurers, a retired judge, a patient liaison, and a consumer advocate, produced a report entitled “Enabling Recovery From Common Traffic Injuries: A Focus on the Injured Person,” which contains a number of minor injury treatment protocols for various types of injuries.

The Final Report (CTI Report) was delivered to FSCO in December 2014 and released to the public in mid-2015. [3] It is lengthy, numbering 279 pages and referencing voluminous background material.

FSCO invited feedback on the CTI Report addressing its impact on individual stakeholders. [4]

THE CTI REPORT: ENABLING RECOVERY FROM COMMON TRAFFIC INJURIES

The CTI Report addresses and outlines science-based treatment for “common traffic injuries”. The OPTIMa Collaboration was tasked with developing “Care Pathways” to promote recovery from common traffic injuries. [5] These take the shape of clinical practice guidelines that form the bulk of the CTI Report. These Care Pathways or guidelines cover the following injury types:

• neck pain and associated disorders;
• headaches associated with neck pain;
• soft tissue disorders of the upper extremity;
• soft tissue disorders of the lower extremity;
• temporomandibular disorders;
• mild traumatic brain injury; and
• low back pain with and without radiculopathy.

The “common traffic injury” classification was adopted to replace the term “minor injury”, which the Collaboration viewed as inappropriate. It reached this conclusion after canvassing a small number of injured persons with minor injuries, inviting comments on the terminology.

In a further movement away from the “minor injury” terminology, the CTI Report proposes a new categorization of motor vehicle accident injuries into one of three categories: Type I; Type II; or Type III.

Type I injuries roughly encompass today’s concept of minor injuries, but notably explicitly include traumatic radiculopathies, mild traumatic brain injuries, and post-traumatic psychological symptoms such as anxiety and stress. [6] The Report acknowledges that a small number of patients with these injuries will experience residual problems over time and develop chronic and more widespread pain, regardless of intervention. [7]

Type I injuries are comprised of three subcategories: [8]

• Physical impairments: grades I to III NAD; headaches associated with neck pain; non-specific thoracic and lumbar spine pain, thoracic and lumbar radiculopathy [nerve root injury]; grades I and II girdle and limb sprains and strains; grades I and II sprains and strains of the temporomandibular joint; skin and muscle contusions, abrasions and skin lacerations (which do not extend beneath the dermis).
• Mental impairments : concussion/mild traumatic brain injury as defined by the American Congress of Rehabilitation Medicine (MTBI is defined by loss of consciousness of less than 30 minutes, with altered consciousness < 24 hours, and post-traumatic amnesia < 1 day, and a Glasgow Coma Scale of 13 to 15) and normal structural imaging.

• Psychological impairments : “early” psychological signs and symptoms that include poor expectations of recovery, post-collision depressive symptomatology, fear, anger and frustration.

By contrast, the current “minor injury” definition covers sprains, strains, whiplash associated disorder, contusions, abrasions, lacerations or subluxation and any clinically associated sequelae. Though the inclusion of “clinically associated sequelae” and the ambiguity of this term broadens the existing definition, it appears that the new “common traffic injuries” or Type I injuries concept covers more injuries than the current minor injury definition, most notably by the explicit inclusion of some mental and psychological impairments.

Type II and III injuries are not dealt with in the CTI Report, but roughly correspond with what today would be referred to as non-minor and catastrophic injuries, respectively. In more technical terms, the CTI Report defines Type II injuries as typically involving a “substantial loss of anatomical alignment, structural integrity, psychological, cognitive, and/or psychological functioning.” By way of example, the Report states that depression and PTSD, among many other injuries, fall into this category.

SUBMISSIONS OF VARIOUS STAKEHOLDERS

It appears that consultations between FSCO and various stakeholder groups have occurred. A number of stakeholders have also taken the opportunity to provide submissions on the CTI Report and a draft CTI Guideline.

Concerns regarding the CTI definition

First, there are concerns about the terminology used in the new CTI definition and the definition itself.

The inclusion of “early” psychological signs addresses the MIG’s silence on psychological issues, but falls under scrutiny. Some stakeholders argue that this terminology is confusing, particularly when diagnosis of such symptoms and their severity relies heavily on subjective judgments and self-reporting. Others suggest avoiding reference to potentially confusing terms that might imply a diagnosed disorder, such as “depression”, “anxiety”, and “post-traumatic stress”. [9]

Second, and predictably so, there is disagreement from stakeholders as to what injuries should and should not be included in the Type I category. As noted above, the CTI definition appears to be a broadening of its minor injury predecessor.

Some psychological practitioners suggest that psychological, mental and behavioral disorders should be considered Type II injuries. [10] Notably, the inclusion of depression and PTSD in Type II, two frequently disputed issues between claimants and insurers, is furthermore likely to continue to generate disputes.

Other practitioners point out that traumatic radiculopathies can have different courses of care and if neurological signs outweigh musculoskeletal symptoms, such an injury should not be considered Type I. [11] These same practitioners do not support the inclusion of minor traumatic brain injuries in Type I. [12]

The definition of Type II injuries appears to suggest that Type I injuries could become Type II if they persist beyond six months, thus escaping the CTI financial limits. [13] Notably, the CTI financial limits have yet to be discussed and agreed upon, and are likely to generate further criticism from stakeholders.

Concerns regarding the OPTIMa Collaboration’s methodology and the nature of the Care Pathways

Some stakeholders have argued that the research of the OPTIMa Collaboration did not account for cumulative effects of multiple injuries, particularly with respect to recovery time, response to treatment, and risk factors, and how these may impact the recommended Care Pathway or treatment protocol. [14]

There have also been concerns expressed about the allegedly disproportionate composition of the professionals on the MITPP teams and the minor injury clients they consulted. Some stakeholders note that these teams featured a large number of chiropractors and clinicians specializing in insurer examinations, with no representation from, for example, speech language pathologists, social workers, psychologists or clinicians that carry out treatment. [15] Others add that there was a notable lack of consultation with broader clinical and academic communities before finalizing the CTI Report and the treatment protocols contained therein. [16]

Some practitioners criticize the Care Pathways as being overly directive, noting that the options within certain Pathways are very limited. [17] Others consider it troubling that occupational therapists are left off the list of permitted initiating and coordinating health professionals. [18]

Though the intention of the MITPP was to base treatment protocols on proven scientific research, some stakeholders are also critical of the Collaboration’s position that only practices proven to be effective by quality research are worth implementing. [19]

Stakeholders have drawn attention to the specific language used in the CTI Report and draft Guideline, noting places where terms could be clarified or modified because, as written, they are likely to cause confusion. [20]

Concerns regarding reliance on Self Reporting and Shared Decision-Making

From a defence perspective, there are a couple a features of the CTI Report that may cause concern, namely the reliance on a claimant’s self-reporting of his or her injuries and the notion of “shared decision-making” that appears throughout the Report. Though “a focus on the injured person” is not doubt invaluable in a healthcare context, the SABS environment is compensation driven, where a claimant will generally receive greater benefits for a more serious impairment. This is a financial incentive that is likely to affect how the CTI structure may play out if implemented.

COMMENTARY

The Minor Injury Treatment Protocol Project and the CTI Report produced by the OPTIMa Collaboration are, at least in one way, beneficial to nearly all stakeholders in that they provide some clarity around the definition of common traffic injuries and the appropriate treatment protocols for certain commonly encountered subsets of injuries within this category. The process that led to the Report appears robust, reflecting a thorough analysis of existing scientific research.

The identification and description of treatment protocols is an important step in the evaluation of the “minor injury” concept, particularly because – at the very least – it distinguishes between treatment approaches that are valuable and those that are not supported by existing scientific literature.

Predictably there are concerns from various stakeholders regarding the terminology, the definition, the methodologies in determining the Care Pathways and the protocols as well as the heavy reliance on subjective reporting.

The challenge with the CTI Report will come now as the government seeks to integrate elements of the Report into the existing and evolving statutory accident benefits framework.

[1] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx>.

[2] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx>.

[3] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx>.

[4] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx >.

[5] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 5.

[6] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 7.

[7] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 7.

[8] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 34.

[9] Ontario Psychological Association, “OPA Response to: Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 5.

[10] Ontario Psychological Association, “OPA Response to: Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 5.

[11] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 2.

[12] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 4.

[13] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 3.

[14] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 2.

[15] Ontario Rehab Alliance, “Response to the Draft Superintendent’s CTI Guideline”, September 3, 2015, p. 1.

[16] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 1.

[17] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 3.

[18] Ontario Rehab Alliance, “Response to the Draft Superintendent’s CTI Guideline”, September 3, 2015, p. 4.

[19] Ontario Rehab Alliance, “Response to the Draft Superintendent’s CTI Guideline”, September 3, 2015, p. 2.

[20] Ontario Psychological Association, “OPA Submission Regarding the CTI Guideline”, p.6.

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by Neil Colville-Reeves

Can plaintiff corroborate own evidence for threshold?

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Under Ontario’s threshold provision, persons injured in a car accident can sue for damages for non-pecuniary loss only if they have sustained “a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement.”

Beginning in October 2003, s. 4.3(5) of Ontario Regulation 461/96 (Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996) injured persons have also had to meet evidentiary requirements prescribed by regulation. They must lead evidence of their impairment from a qualified physician and, in addition to that evidence, they must “adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.”

This appeal to the Ontario Court of Appeal raises a single question: can the injured person – the plaintiff – provide the corroborating evidence? The answer – “yes”.

The words of s. 4.3(5) do not expressly preclude the plaintiff or the injured person from being the corroborating witness. Section 4.3 requires the evidence of at least one physician and some other evidence of change in function. The physician’s evidence alone is not enough and the other evidence alone is not enough. That other evidence may come from the plaintiff, a family member, an employer or co-worker, another lay person, or even from surveillance or medical records. Section 4.3(5) does not exclude anyone or anything. Indeed, undoubtedly there are cases where a plaintiff cannot provide corroborating evidence – for example, if the plaintiff is a minor or was severely brain damaged in the accident – otherwise the plaintiff may corroborate the evidence from the doctor about the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

See Gyorffy v. Drury, 2015 ONCA 31

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