Monday, August 17, 2015

Appellate Division holds claimant's failure to attend IME is complete defense to PIP claim

Barron Chiropractic provided treatment to Corey Hinds after Hinds was in a car accident while operating a car owned and insured by ERAC.


Barron sought PIP payments for the treatments.  ERAC argued that it was not obligated to pay the PIP claim because Hinds failed to attend independent medical examinations scheduled by ERAC's third-party administrator.


In Barron Chiropractic & Rehabilitation, P.C. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2015 WL 4619841 (Mass. App. Div.), the Massachusetts Appellate Division affirmed summary judgment for ERAC.  "Where, as here, the insured fails to submit to a request for an IME, that amounts to non-cooperation which is a complete defense.  The insurer is not required to make any payments where that condition precedent was not met." 

Friday, August 14, 2015

Implementing the 2015 Ontario Budget

The Ontario government continues to implement auto insurance announced in the 2015 Ontario Budget.  More regulatory changes are expected in the fall.

Ontario Regulation 664

 Regulation 664 has been amended to require that all insurers offer a discount to policyholders for the use of winter tires. The winter tire discount must be made available for contracts issued or renewed on or after January 1, 2016. Insurers are encouraged to implement the discount before January 1, 2016, where feasible.

 Insurance companies that do not currently offer a winter tire discount must file an application for approval with FSCO no later than August 28, 2015.

Ontario Regulation 461/96 

Regulation 461/96 has been amended to ensure that the deductible amounts for damages for non-pecuniary loss (pain and suffering) reflect the effects of inflation since 2003. The regulation amendments include the following: 

  • The $30,000 deductible amount prescribed in the case of damages for non-pecuniary loss is adjusted to $36,540 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year. 
  • The $15,000 deductible amount prescribed in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, is adjusted to $18,270 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year. 
Regulation 664 can be found here.
    Regulation 461/96 can be found here.

    Wednesday, August 12, 2015

    Statutory Third Party Must Answer Questions About Denial of Coverage

    A recent decision requires a statutory third party to answer questions about why it denied coverage to its insured.  In Lica v. Dhaliwal, 2015 ONSC 3888 (S.C.J.), State Farm denied coverage and added itself as a statutory third party.  The plaintiff asked questions by written interrogatory requesting details as to why the insurer denied coverage.  State Farm refused to answer and the plaintiff brought a motion, arguing he needed the information in order for him to claim underinsurance coverage from his own insurer under the OPCF 44R and to permit his insurer to assess its potential liability.  State Farm argued that the main action was not the proper forum to decide coverage issues so the questions were improper.

    Justice Price ordered State Farm to provide details of the denial of coverage.  A court requires the information to determine whether State Farm's allegation the insured breached the conditions of his policy are borne out by the evidence.  If the denial was justified, the plaintiff would have access to the coverage provided by his OPCF 44R endorsement.  Justice Price held that where coverage has been denied, the court should determine whether an insurer must disclose the information and documents relating to its decision on a case by case basis, having regard to whether the documents are relevant, whether their disclosure would cause prejudice, whether they are protected by litigation privilege and whether that privilege, if it exists, has been waived.

    Statutory Third Parties will have to carefully consider what must be disclosed as a result of the Lica decision.

    Monday, August 10, 2015

    OWCP continues to move towards transition to ICD-10 effective October 1, 2015

    The implementation of ICD-10 continues to approach. Effective October 1, 2015 OWCP will transition coding in FECA cases to use the new coding standard for injuries and will update old codes to reflect the new standard. There is an announcement on their website regarding this as well:
    http://www.dol.gov/owcp/dfec/ICD10transition.htm

    Thursday, July 30, 2015

    Access to ACS and CQS is offline

    The Office of Personnel Management hack has triggered another victim. OWCP claimants and their representatives and medical providers are no longer able to access the ACS web bill processing portal to look at the status of bills, authorizations, etc. The CQS portal is also gone. As it was explained to me, OWCP has locked down external log ins to their system due to the continuing concerns about hacking. This has sent OWCP back to the 1990s with all inquiries regarding the status of anything in the case reverting to telephone.

    Presently there is no guidance as to how long this situation will continue. When trying to log in to the ACS portal you will get the following message:

    Claimant Login
     
    NOTICE
    Claimant access to ACS Web Bill Processing Portal has been temporarily taken offline . We are sorry for the inconvenience. In the interim, you may use the following information below for additional help.
      Bill information:
    • In the meantime, claimants may obtain medical bill processing information related to their cases by calling the XEROX call center (844)-493-1966.
      Case information:
    • Current federal employees may access their information via the National Financial Center (NFC) Employee Personal Page link. After logging into the Employee Page, the CQS link to access data can be found at the lower, left portion of the page. Claimants who are not serviced by NFC, or have separated from federal service and want to obtain information about their OWCP case such as case status, recent compensation payment, or status of their most recent CA7 Claim for Compensation, may do so by using OWCP's IVR phone system by calling their local district office.
    Name Business Phone Business Address
    Boston District Office 1 (857) 264-4600 JFK Federal Building, Room E-260
    New York District Office 1 (212) 863-0800 201 Varick Street, Room 740
    Philadelphia District Office 1 (267) 687-4160 170 S. Independence Mall West
    Jacksonville District Office 1 (904) 366-0100 400 West Bay Street, Room 826
    Cleveland District Office 1 (216) 902-5600 1240 East Ninth Street, Room 851
    Chicago District Office 1 (312) 789-2800 230 South Dearborn Street, Eighth Floor
    Kansas City District Office 1 (816) 268-3040 2300 Main Street, Suite 1090
    Denver District Office 1 (303) 202-2500 One Denver Federal Center, Bldg 53
    San Francisco District Office 1 (415) 241-3300 90 Seventh St. Suite 15-100F
    Seattle District Office 1 (206) 470-3100 300 Fifth Avenue, Suite 1050
    Dallas District Office 1 (214) 749-2320 525 South Griffin Street, Room 100
    Washington District Office 1 (202) 513-6800 800 N. Capital Street, N.W., Room 800