Law Times

Law timeS • September 12, 2011 BRIEF: PERSONAL INJURY LAW page 13 by an expert report on the def- inition of catastrophic impair- ment. Thomson Rogers partner Darcy Merkur told an audience at the firm's Back to School conference last week that the report, commissioned by the provincial government as part of the Financial Services Com- mission of Ontario's five-year review of automobile insur- ance, would render the current definition unrecognizable. "That's not to say it's all bad, but I consider it a complete overhaul," Merkur said during a session at the Four Seasons Hotel in Toronto on Sept. 8. "The future is uncertain, and we don't know whether the changes are going to happen." After 15 years of building up a base of jurisprudence under the existing definition, Merkur said lawyers will no longer be sure of how a court will de- cide matters if the government adopts the proposed changes in legislation, a situation that would upset the stability of the current system. "We've had 15 years of this definition and we finally under- stand and can predict what's going to happen. It forces the insurance company to act somewhat reasonably, and now we're going back to basics where it will take us 15 more years to figure out what's meant." The definition is critical because victims who meet the threshold gain access to as much as $2 million of addi- tional benefits for medical and rehabilitation services. The panel recommended an assortment of new tests to measure spinal cord and brain injuries as well as a new interim designation to allow claimants to get early treatment to stop their injuries from becoming catastrophic in the future. Merkur said intense lobby- ing by lawyer groups and stake- holders in the accident benefit world have made immediate changes unlikely. But after this fall's provincial election, a new government may be in a better position to move forward on implementing the recommen- dations, he noted. According to Merkur, the Ontario Trial Law- yers Association has raised a "war chest" to respond if and when any changes are announced. In the meantime, Merkur said analysis is needed on the potential impact of the pro- posed changes, especially since the commission has previously demanded "compelling rea- sons" for regulatory changes that will increase complexity in the accident benefit system. "We don't know whether the threshold for catastrophic is go- ing up or down. We're worried that it's been raised so that less people will qualify, but no cost Untitled-5 1 Personal injury bar shaken by catastrophic injury report T BY MICHAEL McKIERNAN Law Times he personal injury bar has been thrown into a state of uncertainty analysis has been done. More analysis has been done to figure out if it will lead to more dis- putes and more delay. I don't know of a compelling reason to change things and I don't think you can have one until you do the financial cost analysis. So in my view, it's way premature to announce significant changes to a catastrophic definition with- out doing that analysis. Perhaps at the end of the day it will all be pushed back." According to Merkur, the report has raised the hackles of many players in the system and not just lawyers. He said brain injury asso- ciations were upset about the makeup of the panel and feared it appeared biased given that three of the eight panellists had been consultants to the Insur- ance Bureau of Canada and two of them stated they were un- able to agree that a person who becomes paraplegic or quad- riplegic after a traffic accident 'The future is uncertain, and we don't know whether the changes are going to happen,' says Darcy Merkur. would receive the catastrophic designation. The panel also recom- mended an in-patient rehabili- tation requirement in order to be designated catastrophically impaired, but Merkur said wait times and limited supply made that idea "seem preposterous." There are just 109 beds for people with traumatic brain injuries in the entire province and patients must wait on aver- age about 115 days to get one of them. According to Merkur, the in- terim catastrophic designation, while sounding like a good idea, would in practice lead to more disputes early in the process. "Insurers are not going to accept [the designation] unless they ab- solutely have to," he said. Another recommendation from the panel concerned the combination of physical and psychological ratings when evaluating whole-person injur- ies, which must reach a 55-per- cent threshold for a catas- trophic impairment designa- tion. The panel recommended that the two values couldn't be combined in light of the of the recent Ontario Superior Court decision in Kusnierz v. the Eco- nomical Mutual Insurance Co. The judge in that case de- nied the plaintiff a designa- tion after part of his left leg was amputated, despite the fact that his mental and be- havioural impairments would have bumped his whole-per- son impairment beyond the 55-per-cent threshold, be- cause of the strict demarcation of mental disorders and other impairments in the structure of the benefits schedule. The Kusnierz ruling was at odds with another Superior Court decision, Desbiens v. Mordini, and the commis- sion's own guidelines. Ontario's Court of Appeal is set to hear arguments in the Kusnierz case this November. "That's led to a lot of stake- holders saying, 'Hold on, the Court of Appeal is about to de- cide that, so why are you getting involved?'" Merkur said. LT www.lawtimesnews.com 5/10/11 4:05:30 PM

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