When is it Enough?
Effective June 1, 2016, motor vehicle accident victims, their families and their lawyers will face another revised scheme of accident benefits. In keeping with the recent trend, the revised scheme does not benefit those for whom such legislation ought to protect. Rather, it appears these changes are the worst yet and frighteningly, target those most seriously injured.
The discussion of Ontario Regulation 251/15 (“O. Reg. 251/15”), which will enact amendments to the current Statutory Accident Benefits Schedule (“SABS”), will focus on the restrictions to the definition of catastrophic impairment. It will now be more difficult to be accepted as catastrophically impaired, particularly immediately following an accident. For those who do meet the narrower definition, they will have $1,000,000 less in benefits than those who are currently classified as catastrophically impaired.
The Glasgow Coma Scale, which is often used as a means of demonstrating that a claimant has suffered catastrophic impairment and consequently requires immediate increased benefits, will no longer be accepted as evidence of catastrophic impairment. Rather, the accident victim will need to demonstrate intracranial pathology by means of CT Scan, MRI or “any other medically recognized brain diagnostic technology” when a traumatic brain injury has occurred. If and when sufficient intracranial pathology is found, an assessment must be performed to determine that the injury results in a rating of: (1) Vegetative State, one month or more post-accident; (2) Upper Severe Disability or Lower Severe Disability, six months or more post-accident; or (3) Lower Moderate Disability, one year or more post-accident. These 3 ratings are defined according to “Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use”, published in the Journal of Neurotrauma.
The revised definition leaves much to interpretation. It does not offer the view that benefits will flow immediately. In cases where injured persons are in dire need of benefits, there may be delay. Under the current regime, it is accepted that a Glasgow Coma Scale score of 9 or less will result in the injured person being immediately accepted as catastrophically impaired. There does not appear to be an immediate ability to satisfy the new, narrower threshold definition in the case of a traumatic brain injury.
The restrictions to the definition of catastrophic impairment are not limited to instances of traumatic brain injury. An injury resulting in paraplegia is no longer sufficient on its own to be considered catastrophic impairment. Rather, a claimant will need to demonstrate a sufficiently severe score on a defined impairment scale (ASIA Impairment Scale). Importantly, it appears that if the neurological recovery of the injured claimant is such that it cannot be determined, the designation of catastrophic impairment will not be made until the test is satisfied.
The amputation of a leg will not on its own be sufficient to warrant classification as catastrophically impaired. If you have suffered anything less than a below the knee amputation of your leg, you will not qualify for benefits at the catastrophic impairment level. Further, the ability to qualify as catastrophically impaired as a result of the loss of vision of both eyes will be held to greater scrutiny.
O. Reg 251/15 does more than merely restrict and narrow the definition of catastrophic impairment, it also restricts benefits and entitlements at all levels. Under the current SABS, a person who suffers a complete inability to carry on a normal life as a result of the accident and is not eligible or does not elect to receive income replacement or caregiver benefits, can receive a non-earner benefit. This benefit commences after the six-month anniversary of the accident. The injured person can receive this benefit for his or her lifetime, as long as they continue to meet the test. Effective June 1, 2016, a non-earner benefit can commence after four weeks. This is where any helpful changes for accident victims ends. The non-earner benefit will expire at the two-year anniversary of the accident. Non-catastrophically impaired accident victims have already been stripped of the ability to obtain caregiver benefits. This new change means that if the injured person did not qualify for income replacement benefits but was searching for work at the time and as a result of their accident-related injuries cannot obtain employment, they will be left without any income assistance from their insurer after a period of two years.
The time period within which non-catastrophically impaired accident victims can obtain needed medical and rehabilitation benefits is also being reduced. A non-catastrophically impaired claimant can currently receive medical and rehabilitation benefits for up to ten years. Under O. Reg 251/15, non-catastrophically impaired claimants will be eligible for medical and rehabilitation benefits for up to a maximum of 5 years. We fear that the effect of this change will be to embolden insurers to become even more difficult and less meritorious in their dealings with accident victims and their treatment providers. The insurer’s cost of handling an accident benefits claim will be reduced and its appetite for litigating with a claimant may increase. This will not be beneficial for claimants.
As lawyers and advocates for accident victims, we are determined to utilize the amended legislation to continue to achieve the results our clients need and deserve. Nevertheless, we encourage all Ontarians to reach out to their local representatives and express their dissatisfaction with the recurrent reductions in accident benefits. We ought to be protecting accident victims just as we strive to protect other vulnerable segments of society. The insurance industry must not be permitted to continue to dominate the conversation and the decision-making.
If you wish to discuss the changes to the legislation further or have any questions regarding your accident benefits entitlement, we welcome you to contact one of our accident benefits lawyers.
To view the Regulation in its entirety click on the blog title above.