Law Times

Law Times • sepTember 12, 2016 Page 13 www.lawtimesnews.com PERSONAL INJURY The plaintiffs' bar loved the scale for its simplicity, but FSCO re- ports raised persistent doubts about its long-term accuracy. The new definition also tightened up the rules for when psychological impairments will qualify as catastrophic, with claimants now having to show a mental or behavioural disorder had caused "marked impair- ment" in at least three of the four categories listed by the AMA. Existing case law previously re- quired a finding in just one of the four: • Activities of daily living • Social functioning • Concentration, persistence and pace • Deterioration or decom- pensation in work or work- life settings "There is no question they've made it more difficult, which is kind of unfortunate, because there always seems to be a sort of minimization of disability due to mental health problems," Murray says. "I don't think that's right. In my practice, I can see they are every bit as devastat- ing, if not more . . . serious than a physical impairment." For WPI ratings, the chang- es mean arbitrators will have to switch between the fourth and sixth editions of the AMA guidelines, depending on which type of impairments they are as- sessing or combining. "There is a lot of uncertainty with the new regime. They are certainly not a set of claimant- friendly changes," Murray says. Even claimants who achieve a catastrophic designation now face smaller benefits caps, with a combined $1-million limit on attendant care and medical and rehabilitation benefits, down from the previous $2-million maximum. Despite the changes to the catastrophic definition, Mur- ray says Allen's case offers use- ful guidance to arbitrators ap- pointed to make determinations about impairments sustained by insureds in the future. The new system has moved the process out of FSCO and into the Licence Appeal Tribunal. However, Murray says he wor- ries that the lack of binding prec- edents at the LAT will limit the impact of Blackman's decision. Provincial guidelines encourage LAT adjudicators to "strive for consistency and predictability," but he emphasizes that each de- cision "will be made on the mer- its of the case" before them. But Murray will get a chance to bolster Blackman's findings at the Divisional Court after Secu- rity National applied for judicial review of the decision. According to Nuric, Allen's victory at FSCO, even if upheld by the Divisional Court, will not necessarily mean he ends up with a catastrophic designa- tion after his case is reviewed. Because of the intricacies of the WPI test and the way scores are added, she says it's possible that the score assigned to his chap- ter 4, table 3 impairments will be too small to alter his existing overall rating of 52 per cent. "It was sent back to arbitra- tion, so he gets to spend more money going through that all over again. Maybe it gives him some leverage in settlement ne- gotiations, but it's not necessar- ily a victory," she says. LT Continued from page 11 'There is a lot of uncertainty with the new regime' lion and each vehicle must have a driver on board at all times to monitor its operation. According to the Ontario Ministry of Transportation, more than 100 companies in the province have operations in the automated vehicle industry, and the government hopes to keep them there and attract more by easing regulatory burdens. "In the world of transporta- tion, Ontario has the opportu- nity to show leadership on auto- mated technology," said Steven Del Duca, Ontario's minister of transportation, in a statement announcing the pilot project. "The automated vehicle pilot will ensure that the province's roads remain safe without cre- ating burdens that stif le invest- ment and innovation in Ontar- io's dynamic business environ- ment." Uptake has stalled since the project's launch in January, but Hennick says he expects that to change over the course of the pilot's 10-year span. Elsewhere, Uber has begun experimenting with self-driving cars in Pitts- burgh, and Ford recently an- nounced its plans to have high- volume autonomous 4 cars in operation in the U.S. as part of a ride-sharing service by 2021. Despite the short-term spike in work that could result from the novel fact situations thrown up when human and non- human drivers share the road, some personal injury lawyers predict the trend toward au- tonomous vehicles could inf lict a long-term blow on their line of work. At Trenton, Ont. personal injury law boutique Bonn Law, principal Kristian Bonn has al- ready begun turning his atten- tion to what personal injury law will look like in a fully, or at least partially, driverless world. "I'm personally a propo- nent of anything that brings more safety to the road. If au- tonomous cars perform as an- ticipated, there is going to be a big reduction in the number of crashes, and a reduction in the number of personal injury lawsuits as a result," Bonn says. "I don't think there will be any major changes in the next year or two. It'll probably be five or 10 years before there's a noticeable change in the work, but I think it's coming, and it's always better to plan ahead." LT Continued from page 12 More driverless cars could impact personal injury practices CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance— without exaggeration, we make life easier for you. The largest Swiss Army knife has 85 tools that can perform 141 tasks. Almost as helpful as McKellar. Untitled-3 1 2015-11-24 4:02 PM

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