Law Times

Page 12 May 6, 2013 Law Times • FOCUS Bar reacts to first case on minor injury guideline BY JuDY VAN RHIJN For Law Times N icole Corriero is used to receiving cheers for her hockey-scoring prowess but right now the personal injury lawyer at Lofranco Corriero is getting accolades for helming the first case examining the application of the minor injury guideline. On March 26, 2013, the Financial Services Commission of Ontario released an arbitration decision involving Lenworth Scarlett and Belair Insurance Co. Inc. that was strongly in favour of the plaintiff and is now under appeal. Corriero credits arbitrator John Wilson with moving the matter forward. "The hearing was booked for September," she recalls. "But arbitrator Wilson wanted to do a preliminary hear- ing to deal with the [guideline]. He wouldn't let it be put off. That said to me that he really wanted to get something out there." Corriero realized she might be running the first case under the guideline when she began her research and found there were no other decisions. "I certainly felt the pressure," she says. Her client claimed to have a pre-existing condition that prevented him from achieving Our Services to assist you include: toll free 1.866.314.7335 cbafuturecare.com Berbrier_LT_May6_13.indd 1 13-04-29 10:35 AM TRUST you're putting your reputation on the line. It's all about trust well placed. DAVID PAYNE | WENDY MOORE JOHNS | DAVID TENSZEN Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. maximal recovery from the minor injury, which is one of the exceptions under the guideline, as well as a psychological injury that placed him outside of it. In his decision, Wilson stated that while an insurer may disagree that the plaintiff suffers from depressive symptoms or post-traumatic stress disorder as claimed, "that is the very sort of conflict that is meant to be resolved in court or by arbitration on the issue of reasonableness of the particular treatment proposed, not by unilateral veto of benefits of the insurer." Corriero's argument was that the statutory accident benefits schedule is consumerprotection legislation and any ambiguity should be in favour of the insured person. Wilson expanded on that issue in a 16page analysis. "He made a point to be exceptionally thorough," says Corriero. "I'm sure he was cognizant that the industry has been waiting for quite some time and that his decision was going to be scrutinized under a microscope by both sides." Plaintiff-side lawyers are happy with what they're seeing. Jason Singer of Singer Kwinter calls it a very supportive decision for the rights of accident victims. "It's an extra quiver in our arsenal," he says. Laura Hillyer of Martin & Hillyer Associates is planning to turn Wilson's pronouncement that the guideline is a non-binding interpretive aid into a screen saver. "It's music to our ears. The arbitrator went further than he had to. He gave us some very useful language." Charles Gluckstein of Gluckstein & Associates LLP is particularly happy to see the burden of proof shifted to the insurer. Wilson construed the minor injury guideline regulations as an exception inserted in the policy for the purpose of exempting the insurer from a liability the policy would otherwise cover. "To date, they have assumed that everyone's in the [minor injury guideline] until proven otherwise," says Gluckstein. "This sends a message to insurers that they can't make that decision without credible medical evidence. They can't have a blanket policy." Darcy Merkur of Thomson Rogers says the decision has the potential to finally constrain the guideline. "Insurers try hard to put a [minor injury guideline] umbrella over anyone with any signs of whiplash. Most seriously injured people have whiplash as well." He hopes the case will end that practice. "We all needed clarity. Insurers will push the line over as far as they can but once the line is drawn clearly in the sand, insurers generally play by the rules." Wilson also noted a decision to place someone in the guideline must be an interim one that's open for review once additional information becomes available. 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." Brian Goldfinger of Goldfinger Personal Injury Law is also cheering the ruling. "Just because on Day 1 you are put in the [minor injury guideline] doesn't mean that on Day 2 you can't be taken out of it." However, he warns any change will create a lot of work for insurance companies. "People don't realize the amount of turnover they have. Adjusters are here today and gone tomorrow. It takes time for a new adjuster to get up to speed on a file." There's still a consensus that plaintiffs are now in a much better position. "Insurers have known that plaintiffs are facing a long process to try and get out of the [minor injury guideline]," says Hillyer. "They have been putting those files in a pile that they See Lawyer, page 13 E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in YOUR ADVANTAGE, Litigation & Forensic Accounting, Financial Investigations in and out of the courtroom. Suite 900 45 Sheppard Avenue East, Willowdale, Ontario M2N 5W9 Toronto, Ontario M2N 5W9 TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com ThomsonRogers_LT_May7_12.indd 1 Nicole Corriero is observing a willingness to negotiate since the decision came out. Telephone or Fax (416) 930-1370 (905) 731-5812 evlitigation@rogers.com www.lawtimesnews.com 12-05-01 11:24 AM Vlit_LT_Jan9_12.indd 1 12-01-03 11:38 PM

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