Author Archives: Admin2

17-001337 v. Coachman Insurance Company, 2018 CanLII 139515 (ON LAT)

17-001337 v. Coachman Insurance Company, 2018 CanLII 139515 (ON LAT), <http://canlii.ca/t/hzm7j

[45]        West Park Assessment Centre conducted a catastrophic evaluation for Coachman in 2016, and addendums in 2017. Coachman called the team’s psychologist and orthopaedic surgeon, and relied on the reports of the Occupational Therapist.

[46]        Dr. David Prendergast conducted a psychology IE on July 20, 2016, and issued a report dated October 12, 2016, and a “Material Review” report dated April 21, 2017. His key finding was that “this gentleman was not being entirely straight with me, and I didn’t find any objective evidence of psychological problems.” He concluded that [the applicant] had a 0% WPI rating and a Class 1 (no impairment) under the four domains. There were several noteworthy points to his testimony.

[47]        First, he expressed his evaluation showed (in my words) [the applicant] was dishonest and deliberately exaggeratory, based on several factors: (1) His psychometric testing produced invalid results, with results on the “REY” so low that it’s highly unlikely that his limited education would have been the cause, the MSPQ showed over-reporting physical problems, and on the TOMM Memory Test, which should be free of educational concerns, “His responses were quite extreme. You would have to go out of your way to choose the wrong item in order to do as poorly as he did.” (2) Testing by Drs. Becker and Notofonzo also produced invalid or incomplete results. (3) [the applicant]’s interview did not demonstrate any symptoms that indicate post-traumatic stress disorder, depression or a driving phobia, such as tearfulness, agitation or flashbacks. (4) He maintained a sense of humor, yet displayed a high degree to pain related behavior, walking slow, standing several times to stretch, tense facial expressions, and frequent comments upon his pain.

[48]        Second, during Dr. Prendergast’s testimony, it became clear that he was unaware that two different versions of his report existed, creating an inference that his report had been altered without his knowledge. That discovery came to light during his testimony when he was providing page citations that did not match the version that Coachman had previously circulated and entered into evidence. The copy the doctor brought with him was a 60-page report, dated July 25, 2016 on his own letterhead, yet the report Coachman had disclosed was 44-pages, dated October 12, 2016, and on West Park’s letterhead.

[49]        On inquiry, Dr. Prendergast explained that his version was the draft he sent to West Park and the clinical portion would be the same. West Park’s version, he believed, simply included the OT and in-home assessment reports, but yet he would have reviewed those. However, [the applicant]’s counsel’s questioning established that the OT Report was not yet available at the time the draft report was written, at least minor tinkering can be found in the wording, and the focus of his report is somewhat different (Criterion 7 & 8, versus just 8). Still, he maintained, it’s likely he did the editing, but he could not be sure if the editing occurred after his last approval, and he doesn’t recall switching [the applicant]’s name from Mr. R. to Mr. A.R.

[50]        Third, his testimony changed on questioning. At first, he said he was disagreeing “to an extent” with prior assessors that found [the applicant] had diagnoses from the work-related accident, but when pressed during cross-examination, he broadened his opinion to even disagree with prior assessments, including Dr. Notorfonzo’s, despite it being several years earlier. Then on re-examination, he again changed his answer, correctly limiting it to that he can only comment as to the date of his assessment. His waiver back and forth on this point of inherently claiming [the applicant] had fooled so many previous assessors, may simply be due to strong cross-examination, but it weakens his testimony. Ultimately, for balance, he did clarify that while he could not confirm objective evidence of a psychological impairment or distress based on his interview and test data to formally diagnose [the applicant] with a disorder – he did acknowledge [the applicant] could still have distress, a history of pain problems, or limitations.

[69]        Regarding the diagnosis, I find that [the applicant] does have a pain disorder and depression, although possibly not to the full extent that [the applicant] suggests. Thus, I accept Dr. Becker’s conclusion on diagnosis over Dr. Prendergast’s, for several reasons.

                                   a.         [The applicant] has been consistently diagnosed with a pain disorder and/or depression since at least 2008, by numerous assessors, including Coachman’s own, who did so despite “invalid” indicators.

                                   b.         Both psychological assessors agreed that a lack of formal education and cultural and language issues could at least partially explain the poor validity results. Dr. Becker concluded that validity tests were not particularly reliable, and tried to interpret the remaining data. Dr. Prendergast concluded that regardless of educational issues, the results were so extreme, and not supported by other objective evidence, that he concluded that [the applicant] “wasn’t being straight” with him.

                                    c.         While [the applicant] wasn’t entirely “straight” with Dr. Prendergast, Dr. Becker’s approach fit with the overall evidence – [the applicant]’s behavior, other diagnoses (including IE assessor Dr. Notarfonzo’s on “invalid” results).

                                   d.         While I accept some of Dr. Prendergast’s testimony on other points, the altered report and his comment that he disagreed with long-past prior diagnoses, a comment he soon retracted, weakened the strength of his opinion in this matter.

May 8, 2019

OUT OF PROVINCE MOTOR VEHICLE ACCIDENTS – AM I COVERED?

One of the biggest concerns for Ontario motorist travelling outside Ontario is whether their insurance will cover their claims should they become involved in an accident. This is a significant concern. Unlike Ontario which requires motorists to carry a minimum of $200,000.00 of liability coverage, in the USA, most states do not require motorists to carry a minimum amount of liability insurance. The effect is that many motorists in the USA have little or no insurance coverage. 
 
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Personal Injury Glossary

Accident Benefits:  These are the benefits available to anyone injured in a car accident, regardless of who was at fault.  These car insurance company paid benefits can provide for income or care giving replacement costs as well as assist with medical, rehabilitation, visitor, attendant care and housekeeping expenses. 
 
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The Ontario Caregiver Organization is here to help connect you to information, supports and services.

There are many resources in Ontario that help to connect caregivers with support, but many caregivers don’t know they exist or may find them hard to use. We don’t want to duplicate these services. Instead we want to provide helpful information that will make it easier for you to use these resources to find the support you need. 
 
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You used to like your job, but over time you’ve become bitter and negative about everything you do. You feel as if you get no fulfillment from your work and don’t see the value you bring to your organization. You’re stuck in a rut and don’t know how to get out of it. 
 
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Defend Disability!

In November of last year, Minister MacLeod announced her intention to change the definition of disability that her ministry uses to determine if a low-income person is eligible for ODSP benefits. 
 
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Emotional Problems After Traumatic Brain Injury

Some people may experience emotions very quickly and intensely but with very little lasting effect. For example, they may get angry easily but get over it quickly. Or they may seem to be “on an emotional roller coaster” in which they are happy one moment, sad the next and then angry. This is called emotional lability. 
 

May 7, 2019

Toronto Star nominated for its Medical Disorder” investigation that revealed a patchwork of rules and disclosure polices that allows doctors on both sides of the border to leave behind documented histories of crime, sexual misconduct, incompetence and fraud.  https://www.newswire.ca/news-releases/finalists-announced-for-cjf-jackman-award-for-excellence-in-journalism-850637025.html
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Updated: How Insurers Deduct Thousands from Accident Victims’ Compensation

You might expect our legal system to adequately compensate you for the pain and suffering that you have endured. Although there is access to the courts to seek compensation for pain and suffering after a car crash, that compensation is subject to a secret insurance deductible. 

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Why it’s ‘time to stop talking’ about the Marshall report

Two years after David Marshall released 30 recommendations for reforming auto insurance in Ontario, it’s time to focus to what the current government is actually proposing, a consultant suggests. 
 
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What auto insurance brokers should keep in mind if cash settlements are banned

Brokers need to understand both the upside and downside to a “care not cash” clause in an accident benefits policy so clients can choose an option that fits their needs, says an Ontario auto insurance expert. 
 
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MANDEL: Law Society of Ontario taken over by ‘right-wing, fundamentalist religious zealots?’

Some lawyers are raising the alarm about a slate of new directors to the Law Society of Ontario that includes those opposed to abortion rights and same-sex marriage. 
 
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Ontario’s move to review highway speed limits, explained

Ontario’s government plans to launch a review of speed limits on provincial highways, with the transportation minister musing that some of those roads can safely handle traffic at 120 kilometres per hour. 
 
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Roadside drug testing device picks up false positives from poppy seeds and tea, B.C. lawyers find

Police are continuing to remind people not to get high before driving. But what about the dangers of eating poppy seed cake? 
 

Advocate named Orillia’s Woman of the Year (10 photos)

Tammy Kirkwood wins award at Orillia Business Women’s Association event; Julia Felgner named Young Woman of the Year

Kirkwood, vice-chair of the FAIR Association of Victims for Accident Insurance Reform, was surprised to hear her name called.

That surprise was evident in the first two words of her speech, only one of which can be repeated here: “holy.”

Kirkwood used to take care of and counsel people with disabilities.

She was critically injured after her vehicle was hit by a dump truck in 2008.

“And then I became my client,” she said.

https://www.orilliamatters.com/local-news/advocate-named-orillias-woman-of-the-year-10-photos-1436372?utm_source=dlvr.it&utm_medium=facebook&fbclid=IwAR2Rkepnwmei6-m7kAwNNrgVJSqol9_r-MirCJDRdeG40rnbhgLdV3RvDNE

Notes for auto insurance changes in 2019 Budget

Budget 2019 comments and concerns

May 3, 2019

Why this claimant cannot sue over auto collision

A motorist should have known he was listed by his insurer as an excluded driver, an Ontario court has ruled. 
 
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To repair, or not to repair?

Imagine Canada’s auto insurance industry saving millions of dollars each year in total loss costs and passing that along to Canadian drivers in the form of premium decreases. And all by simply reducing total loss cycle times by a week. How can the industry do this? 
 
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Furtive looks, nervousness, hesitation: How nonverbal communication influences the justice system

Pauses in answers, body movements, elusive or angry looks, confusion, anxiety — the facial expressions and gestures made by witnesses matter in court. Conclusions about the credibility of witnesses can hang on their nonverbal behaviour. 
 
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Housing Needs Assessment Subject to SABs $2000 limit – 17-006934 RG v State Farm Insurance, 2019 CanLII 18340 (ON LAT)

The parties have asked LAT to decide whether home accessibility and alternative housing assessments are subject to the $2,000.00 cap placed on assessments and examinations under Schedule. RG was involved in a car accident on January 17, 2009, and she was deemed to be catastrophically impaired by State Farm in February 2012. 
 
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A Closer Look At Short-term Disability Benefits In Ontario

When you fall ill or sustain an injury that leaves you unable to work for a period of time, applying for disability benefits can seem overwhelming and like a monumental task. Insurance policies can appear to be complex and difficult to understand. It might not be clear what type of information the insurance company is looking for in order to approve your claim.

May 2, 2019

The sooner ATE insurance is obtained, the better

It’s recommended that lawyers and their clients insure personal injury claims as soon as possible because, as litigation progresses, Plaintiff Cost Insurance (PCI) can become more expensive or unavailable, say Dominique Zipper and Joanna Milnes — both with legal expense insurance company DAS
 
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Stem the Tide – Updated LAT Statistics December 2018

By year end 2017, we were asking if the LAT was being “overtaken by events” with steady growth in LAT applications outpacing closure activity, resulting in an active caseload of 3,601. Now 9 months later, the trend continues with a drop in closure activity from 33% to 27% resulting in an increase in active caseload to 6,881. 
 
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Who Can Be Held Liable for My Truck Accident? 

Many truck accidents have contributing factors that are unique to the trucking industry, which makes them much different than typical car accidents. Many different parties and entities can be involved in a truck accident, which can make determining liability even more difficult.
 
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What goes on at mediation in a personal injury case (Ontario)

For the majority of Plaintiffs involved in a personal injury case, it’s your first time participating in a mediation. You don’t know how a mediation works, what to do, what to wear, what to expect, or how long the mediation will take place that day. 
 
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Settlements and releases 101

Parties who take their eye off the ball after agreeing to settle often risk another wave of expensive litigation, Toronto senior litigation lawyer Jeffrey Silver tells AdvocateDaily.com
 
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We’ve never had a premier like Doug Ford before. Here’s why

On Wednesday, Doug Ford entered his 10th month as Ontario’s 26th premier. That may not be enough time for the public to be able to render a verdict on his first term in government. But it is enough time to consider what kind of premier Ford is. The answer is clear: if you’re under 75 years old, he’s unlike anything you’ve seen in your lifetime. 
 

May 1, 2019

Ontario’s ‘most encouraging statement about auto insurance’ in 35 years

The recent Ontario budget document is giving some insurers hope that the government will actually fix the province’s auto insurance system. 
 
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Why the court says this auto insurer did not properly terminate policy

An auto insurance company cannot necessarily treat a policy as invalid under common law if it discovers the client made a material misrepresentation on the application, the Court of Appeal for Ontario has ruled. 
 
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Canada’s Tough New Impaired Driving Laws

Did you know that the leading criminal cause of death and injury in Canada is still impaired driving? In an effort to combat Canada’s drunk driving problem, significant changes to the law were made effective December 18, 2018. 
 
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Kitchener neurologist loses license over sex assault allegations

A Kitchener neurologist has been forbidden from practicing medicine again in the wake of allegations that he sexually assaulted three patients
 
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Summary of CPSO Strategic Planning Engagement Activities 

The College of Physicians and Surgeons of Ontario (CPSO) is currently developing a new Strategic Plan.Because public, physician and system partners’ perspectives are so important, the CPSO engaged withmany individuals and groups to ensure the new Strategic Plan is focused on the right priorities. Thissummary provides an overview of engagement activities, what we heard, and key takeaways
 
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How Hamilton hopes to eradicate homelessness by 2025

Marsha Travale talks about sleeping in “cubbyholes.”In reality, they are doorways and bus shelters, where she lies on the cold concrete in terrible weather with nothing more than a blanket.

April 30, 2019

Auto Insurance Rates for the First Quarter of 2019

This notice provides an overview of the private passenger automobile insurance rate changes approved by the Financial Services Commission of Ontario (FSCO) for filings reviewed in the first quarter of 2019. The number of filings reviewed by FSCO and the overall average rate change for the Ontario market may vary from quarter to quarter, based on updated information about claims costs, market conditions, financial factors and the resulting impact that these factors have on the adequacy of an insurance company’s current rates.  http://www.fsco.gov.on.ca/en/auto/rates/Pages/q1-2019.aspx

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FSCO issues warning regarding two unlicensed insurance agents

The Financial Services Commission of Ontario (FSCO) has issued a couple of notices, warning consumers in the area to avoid all business with two unlicensed insurance “professionals.” 
 
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Postal code change leaves couple facing insurance hike

An Ontario couple saw their home and auto insurance premiums increase to the tune of hundreds of dollars per year because of a change in their address – even though they didn’t move. 
 
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Apply to the Motor Vehicle Accident Claims Fund

If you were in a car accident and no one had auto insurance, you may be eligible for compensation for your injuries or property damage. Learn how to apply to the Motor Vehicle Accident Claims Fund. 
 
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Structured settlements often the wise choice: Hollingsworth

When a plaintiff agrees to resolve a personal injury claim by receiving a structured settlement from the insurance company, it offers several advantages, says Ottawa personal injury lawyer David Hollingsworth
 
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Applicant shows injuries fall outside MIG – 18-00007 JS v. Cooperators General Insurance Company, 2019 CanLII 14395 (ON LAT)

JS was injured in a car accident on January 5, 2016 and sought benefits from The Cooperators pursuant to the SABs but when The Cooperators refused to pay for certain benefits JS applied to the LAT for resolution of this dispute. 
 
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Four strategies to strengthen the leadership of lived experts in an advocacy network

The ODSP Action Coalition is a grassroots network led by people with disabilities in receipt of the Ontario Disability Support Program (ODSP), disability service providers, community agencies, and legal clinics. Anyone on ODSP, a family member of someone on ODSP, or an agency that serves any disability group can join the Coalition. 
 
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Hospitals helping patients recover faster from surgery 

Roughly a million Canadians a year undergo surgery. On average, they spend a week in hospital. That’s according to the Canadian Institute for Health Information. An article published today in the Canadian Medical Association Journal is offering a new approach to shorten hospital stays and reduce complications.   
 

April 29, 2019

Supreme Court to consider insurer’s medical examiner defamation suit against lawyer

A $15-million defamation lawsuit by a doctor who examines accident benefits claims on behalf of auto insurers is headed to the Supreme Court of Canada. 
 
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Insurance Rates Are Rising Across Canada – Here’s Why

J.D. Power’s 2019 Canada Auto Insurance Satisfaction Study says that the national average increase for insurance rates currently sits at $298. Alberta has had the highest spike in costs at $326, followed by Ontario at $311, Atlantic Canada at $286, and Quebec at $213. 
 
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Is the homeowner responsible for an accident on his property?

Someone slipped and fell on my driveway during the winter and I don’t have home insurance. Should I be worried? 
 
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Can Stem Cells End Personal Injury Law?

As a personal injury lawyer, my clients meet me after tragedy and misfortune. Our relationship starts out after something has gone terribly wrong in their lives and they need my help. While there are many elements to my role, one of my predominant roles is securing compensation for my clients. 
 
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Unfinished business: Time for a national Pharmacare system

A 2015 survey found that “24 per cent of Ontarians reported that they or a member of their household did not take their medications as prescribed, or missed medications, due to cost.” Given that, according to the CMAJO, “drugs for mental health conditions were the most commonly reported drug class for cost-related non-adherence.” It’s clear that prescription drug cost is a major problem, not just nationally, but locally. 
 
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For those following the James Sears Story