Get SSA to "pay" your attorney fees in your workers compensation case

This is a topic I posted on about 2 years ago. If you are receiving a check from OWCP and are also entitled to Social Security Disability payments from SSA, you can get SSA to "pay" your attorney fees as an "excludable expense." This also applies to other expenses related to your workers compensation such as paying for medical reports.

SSA has a document available online explaining how to report your attorney fees paid in connection with receiving FECA wage loss benefits from OWCP. The attorney fees (and other qualifying expenses) will be used to reduce the offset amount. Please click on the link below to SSA POMS - DI 52150.050 - Excludable Expenses, and carefully follow SSA's instructions:

link updated 1/26/15: the url below is correct, if the link does not work, cut and paste the link in your browser.

https://secure.ssa.gov/poms.nsf/lnx/0452150050

If this link does not work, do a google search for the document number  "0452150050"

Insurance News - Thursday, November 27, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, November 27, 2014:

• John Tory joins the Competition Bureau in speaking out against Toronto’s move to file an injunction in court against Uber ride-sharing service.
• A Toronto undercover investigation concluded that there are “real and urgent” safety problems with Uber, including issues with insurance coverage, driver screening and vehicle inspections.
• Meanwhile in California, ride-sharing service drivers from companies such as Uber and Lyft will soon be able to buy an amendment to their auto insurance coverage that will provide them with protection from the moment that they sign on and are waiting for a call to pick up a rider,
• Experts claim driverless cars could add $1.3 Trillion to U.S. economy from reduced accidents and productivity gains.
• Of course driverless cars could also open up employers to steal the last of your free time.
• Fraud has caused ridiculously high auto insurance rates in Detroit which now threatens the city's economic recovery by making it expensive for residents to stay in the city and discouraging newcomers.

Court of Appeal Upholds $1.1 Million Jury Award

The Court of Appeal has upheld a $1.1 million damages award in a product liability case heard by a jury.

In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it.  The jury found the defendant 75% at fault and the plaintiff 25%.  Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.

The Court of Appeal upheld the award except for the aggravated damages.  It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.  Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances.  In the circumstances, there was an evidentiary basis for the jury's conclusion.

The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.

This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.

Insurance News - Saturday, November 22, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Saturday, November 22, 2014:

• Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 passed this week with no changes.  The bill when proclaimed will transfer accident benefit disputes to the Licence Appeal Tribunal, implement the oversight of the billing practices of health clinics, and introduce new rules governing tow truck operators and vehicle storage yard.
• The legal community was unable to convince the government to make changes to Bill 15 which means the new dispute resolution system will have no access to the courts and prejudgment interest will be reduced.
• This week the Ontario government released its Fall Economic Outlook and Fiscal Review (pages 71-72 deal with auto insurance).
• Driverless vehicles and smart cities can cut auto fatalities and CO2 emissions by 2025.
• Armed with analytics, predictive modeling and big data, insurers are moving to take on application fraud.
• Automakers adopt protocols to handle and protect consumer data in connected car era.

It's Time That The Insurance Industry and Regulators Begin Accommodating Ride-Sharing Services

Uber, a San Francisco-based company estimated to be worth $17 billion (U.S.) is aiming to shake up the taxi business in Toronto.

Uber is reported to operate in more than 140 cities in 40 countries around the world, offering taxis, limos and car-sharing services, allowing customers to bypass traditional taxi companies and brokerages to request a ride using their smartphones.

When Uber first set up in Toronto in 2012, city of Toronto officials informed the company that it needed to get a brokerage licence. Uber disputed the request and has been insisting that it is not a taxi service, but rather a technology company, and therefore not subject to licensing requirements. The city has since hit Uber with 35 bylaw infractions and now the city is headed to court in an attempt to get an injunction to shut down the service. 

Toronto Mayor-elect John Tory is correct.  Uber and similar ride-sharing services aren't going anywhere.  Consumers like these new services and that's why there are using them.  Using a smartphone app, you will be told when the vehicle will arrive, who is the driver, the rating of the driver, the cost of the ride with tip and will allow you to pay for the ride without handling any cash.  No need to be standing in the cold or wet on a street corner waving your arm frantically trying to get a passing cab to stop.

The current regulated taxi model is archaic and costly.  The city limits the number of plate owners which has created wealth for plate owners who are often not the drivers. The dispatcher system is out of date when technology allows drivers and consumers to link up directly.  However, there is a lot of money tied up in the current system.  To make matters worse, the regulators appear to be very tied to the existing model.

The one thing that Uber is not short on is money.  They will fight this court battle as they have in other jurisdictions.  They typically come out on top.  Regulators should be designing new regulatory models to accommodate new technologies not fight them.  For example the Ontario Ministry of Transportation is working on a regulatory framework for driverless vehicles.  The insurance regulator and the insurance industry needs to develop insurance products that reflect these new technologies whether it is driverless cars or ride-sharing services.  

The insurance industry needs to recognize that ride-sharing is likely here to stay and properly underwrite these risks to protect drivers and their clients.

No Rebuttable Presumption in Section 4 of the Occupier's Liability Act

Section 4 of the Occupier's Liability Act creates a lower standard of care where premises are "recreational trails reasonably marked as such".  A person who enters such premises is deemed to have willingly assumed all risks.  The Divisional Court has confirmed that the purpose of s. 4 is to reduce the duty of care owed by certain occupiers and attempts to thwart the legislation will not be permitted.

In Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.), the plaintiff was injured while biking on a recreational pathway.  The Commission brought a motion for summary judgment.  The motions judge dismissed the motion on the basis that there was a rebuttable presumption the plaintiff could advance at trial to dislodge the lower standard of care contained in s. 4. 

The Divisional Court disagreed.  The purpose of s. 4 is to reduce the duty of care owed by occupiers of recreational lands.  If the motion judge's decision was allowed to stand, it would undermine the purpose of s. 4.  Acting in reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury result".  There was no evidence the Commission acted in that manner, and in fact, there was evidence the Commission took some steps for the safety of users of the trial.

The Divisional Court allowed the appeal and dismissed the action.

No New Auto Insurance Commitments in 2014 Ontario Fall Economic Statement

The auto insurance focus of this year's Ontario Economic Statement is consumer protection although not everyone is going to agree that these measures are strictly to protect consumers. The statement provides a summary of government activity that is ongoing.

The government claims it is taking steps to keep auto insurance affordable.  As a result of the government’s Auto Insurance Cost and Rate Reduction Strategy, FSCO rate approvals fell by than six per cent on average from August 2013 to August 2014. Although it is not always clear what impact that will have on the paying public.  However, the commitment was for an eight per cent reduction during that time period.

The government has taken action to address over half of the recommendations made by the Auto Insurance Anti‐Fraud Task Force, including key proposals to enhance the Financial Services Commission of Ontario’s (FSCO) investigation and enforcement authority and make it easier for individuals to report suspected auto insurance fraud.

Licensing of health service providers in the auto insurance system, a key Task Force proposal, will become fully effective on December 1, 2014.

The government is also committed to establishing a Serious Fraud Unit, whose initial mandate would include addressing auto insurance fraud. Establishing such a dedicated investigation and prosecution unit would be consistent with the Task Force’s conclusion that cases of suspected auto insurance fraud should be vigorously pursued and prosecuted where evidence warrants.

Bill 15, the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, is working its way through the legislative process and has recently had second reading and undergone a very brief review by a legislative standing committee.  If passed, Bill 15 would:

• Transfer Ontario’s auto insurance dispute resolution system to the Licence Appeal Tribunal and make significant changes to help injured drivers settle disputed claims faster; 
• Regulate the towing and vehicle storage industries through measures that tackle questionable practices; and
• Give the government authority to change the current 60‐day period that a vehicle can be stored after an accident, accruing charges, without notice to the owner. 

Rates are directly linked to claims costs.  So in addition to reducing fraudulent activity and abuse, Bill 15 also will reduce costs in the system.  That is where some of the controversy lies.  The government plans to align prejudgment interest rates on pecuniary and non-pecuniary damages (pain and suffering) to what are typical rates in today’s market. That will reduce the rate to 1.3% (from 5%) on pecuniary damages.

Insurance News - Thursday, November 13, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, November 13, 2014:

• Transcripts for public hearings on Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act 2014 are now available online.
• Owning a car is expensive.  So is ridesharing services like Uber cheaper than owning a car?
• Why do so many consumers seek out "cheap" auto insurance given the expense of their new cars or trucks — easily $30,000, $40,000 or even $50,000 or more for high-end models?
• Driverless car researchers develop plans to prevent hacking on the highway.
• Your car may be programmed to kill you and 9 more fun facts about driverless vehicles.

Insurance News - Tuesday, November 11, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, November 11, 2014:

• Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 passes second reading and has just one day of public hearings.
• Toronto man charged with selling fake auto insurance some drivers on the road without coverage
• Will we need a learner's permit for self-driving cars?
• Utilities, taxis, construction and mining, government and public sectors, emergency services, public transportation and local delivery services will all likely have telematics installed on their vehicles.
• Fatal California accident will test Lyft's $1 million auto insurance policy.
• B.C. Transportation Minister says plainclothes transit agents posing as potential customers will be deployed to ensure taxis and their drivers are operating by B.C.'s rules, which are enforced to ensure passenger safety.

OWCP announces a change of contact number for ACS effective 1/1/2015

Effective January 2, 2015 the ACS customer service number for questions related to provider enrollment, Federal Employees' Compensation Act (FECA) bill payment, and FECA medical authorization status is changing to a new toll free number, (844) 493-1966. Please continue to use the current ACS contact number of (850) 558-1818 until January 2, 2015, when that number will be disconnected. By providing a toll free number, we will be able to offer a more stable service for our stakeholders.

OWCP and other workers compensation systems no longer meet their basic goals

The idea behind workers compensation systems was that injured workers should get immediate benefits allowing them to not lose income and get the medical care they need to return to work as quickly as possible so as to avoid simple injuries becoming serious and the destruction of families due to lengthy waits to receive replacement income. Unfortunately, this system is presently failing many injured workers. This is an interesting article on how OWCP other state systems no longer provide the benefits that they were intended to provide because of the increasing complexity of a system that become more employer oriented by the day:
 http://www.nesri.org/news/2013/03/workers-compensation-the-systems-devastating-economic-impact-on-workers-lives

The Importance of Clarity in Making Rule 49 Offers

The law with respect to r. 49 offers is increasingly complicated.  It is important for offers to be clear in order to benefit from the provisions of r. 49.  At the same time, even if an offer does not qualify as a r. 49 offer, it can be taken into consideration when a court is deciding costs.

In Elbakhiet v. Palmer, 2014 ONCA 544 (C.A.), the plaintiffs sought damages of almost $2 million dollars.  After a jury trial, they were awarded $144,013.07.  The plaintiffs made one offer of $600,000 plus costs.  The defendants made two offers, the second of which was $145,000 plus pre-judgment interest in accordance with the Courts of Justice Act plus costs.

One of the issues at the Court of Appeal was whether the defendants obtained a judgment as favourable or less favourable than their offer.  The defendants’ position was that the offer was intended to mean PJI of 5% on the entire offer (which would mean the offer exceeded the judgment).  The trial judge held that it was not clear that there was a uniform practice that 5% would be applied to the entire offer, and different rates of interest could apply to different heads of damages.  She held the defendants had not beat their offer and ordered the defendants to pay costs of almost $580,000.

The Court of Appeal held that there is no evidence of a general understanding that 5% would apply to the entire offer.  At the same time, the trial judge failed to give proper consideration to r. 49.13 which permits the court to exercise discretion and take into account any offers made.  Since the offer to settle was virtually the same as the judgment, the trial judge should have taken r. 49.13 into account.  She erred in failing to do so.

The Court of Appeal held that “it was not fair and reasonable to award the [plaintiffs] costs of almost $580,000 for a claim the jury valued at just under $145,000”.  It allowed the appeal and reduced the costs payable to the plaintiffs to $100,000. 

Appeals Court sidesteps question of whether PIP carriers can have IME conducted by physical therapist

 Judith Ortiz was injured in an automobile accident. She sought PIP benefits from Commerce. 

Commerce sent Ortiz a notice indicating that she would have an independent medical examination conducted by a physician named Eugene Boeglin.  Ortiz attended the examination.  When Commerce sent her lawyer a copy of the IME report, she learned that Boeglin was not a medical doctor but a "doctor of physical therapy."  (Side note:  I have read hundreds of plaintiffs' physical therapy notes in my career.  Since the notes were all more or less the same I had come to assume that PT was bogus -- until I was referred to PT a few years ago for a pinched nerve.  Those people are miracle workers with knowledge that goes extremely deep.) 

Ortiz sued Mass Medical Services, apparently Boeglin's employer, for violation of the privacy statute, Mass. Gen. Laws ch. 214 s. 1B and of ch. 93A. 

In Ortiz v. Mass Medical Services, Inc., 86 Mass. App. Ct. 1116, 2014 WL 5326511 (unpublished), the Massachusetts Appeals Court affirmed dismissal of the privacy act claim for failure to comply with the statute of limitations. 

The court dismissed the 93A claim because the allegedly unfair and deceptive act -- the fact that Boeglin was a physical therapist, not a medical doctor -- caused no adverse consequences or loss. 

The court did not address whether Commerce itself was in violation of any statute or acting in bad faith by having the IME conducted by a physical therapist.