Law Times

Law Times • January 16, 2017 Page 11 www.lawtimesnews.com Reduced coverage concerning: lawyers BY MARG. BRUINEMAN For Law Times A new definition of cata- strophic impairment and reduced coverage for motor vehicle ac- cident victims is causing wide- spread concern among personal injury lawyers. They say a stricter determi- nation of what qualifies as cata- strophic means fewer people will be able to access necessary care, rehabilitation and assistance. As of June 1, 2016, an accident victim is considered to have cat- astrophic injuries based on the Glasgow Outcome Scale, instead of the Glasgow Coma Scale for brain impairment. That requires imaging to show there was brain damage. Previously, an assessment was required and there was no need for proof from imaging. Toronto personal injury lawyer David Preszler calls the changes "very, very restrictive." "Instead of it being a simple test where your level of con- sciousness after an accident is decreased, now you've got to essentially prove not only that you've got bleeding or some- thing going bad in your brain but also you've got an outcome that's considered severe or dis- abled," says Preszler. "These are huge changes to the brain injury criteria of the statutory accidents benefits schedule that are going to make it much harder for people with brain injury to qualify for cata- strophic impairment." The more restrictive test may eliminate injuries that don't show up on imaging, says Preszler. That includes more minor brain injuries that result in se- vere nausea and post-concussive syndrome, he says, and can cause chronic headaches and ringing in the ears. Preszler is also concerned that children injured in acci- dents need to be admitted as in-patients in a public hospital to now be deemed catastrophic and have imaging prove they've experienced injuries such as bleeding on the brain. To qualify, injured children must also receive neurological rehabilitation in a pediatric facil- ity, he says. However, Preszler says, the problem is there are only a few pediatric facilities in the prov- ince, mostly concentrated in Central Ontario. Preszler says people living outside of those major centres may, therefore, not qualify for catastrophic impairment under the new changes. The revised statutory accident benefits also reduce the amount of money available to those who have suffered catastrophic im- pairment in crashes, say lawyers. Previously, those determined to have catastrophic injuries could get up to $1 million for medical costs and rehabilitation costs, and another $1 million for attendant care. The total amount has been cut in half, so now there is only $1 million available for both combined. Before the changes, those who suffered non-catastrophic inju- ries were also able to access up to $50,000 for medical costs and rehabilitation costs, and another $36,000 for attendant care, for a total of $86,000. Now, that has been reduced to a total of $65,000. The new definition is based on the December 2011 "Superin- tendent's Report on the Defini- tion of Catastrophic Impairment in the Statutory Accident Ben- efits Schedule," which was based on the work of an expert panel. Ministry of Finance spokes- man Scott Blodgett says the changes were aimed at balancing the needs of injured claimants with more affordable auto insur- ance rates. And, he says, Ontario's stan- dard limit for these benefits is the most generous among Canadian provinces with privately deliv- ered auto insurance. But Markham, Ont. personal injury lawyer Darryl Singer says the cuts to the Statutory Acci- dent Benefits Schedule "boggle the mind." "When we talk about cata- strophic, we're talking about people who are never going to work again, you may be talking about people who are never go- ing to walk again, you may be talking about people with trau- matic brain injury, you may be talking about people who need around-the-clock care for the rest of their lives," says Singer. Philippa Samworth, a part- ner with Dutton Brock LLP who practises insurance defence law, says the new definition in the Stat- utory Accident Benefits Schedule is helpful because it is objective and allows two different assessors to come to the same conclusion. Samworth says due to the changes to the Statutory Acci- dent Benefits Schedule, accident victims may exhaust all their benefits before any tort disputes are resolved. This is a problem, because it means there could be a gap peri- od after the immediate accident benefits run out for an injured person and when an outstand- ing lawsuit is settled. People could have no ben- efits while they wait for their tort case to wend its way through the courts. That leaves the accident vic- tims access to only the provincial health system, she says, which may not cover all their needs. "Now, what might happen, and I think this is a problem, is that everything is being short- ened down. So you have a short- er time period to receive these [accident benefits], you have less money available to you, so you're going to run out faster. So even if you have a good claim against the driver that struck you and they have a large liability policy to cover your needs, there's going to be a gap between when your accident benefits coverage runs out and you move into recovering in your tort claim, because the tort just doesn't move as quickly," she says. LT FOCUS Darryl Singer says changes to the Statutory Accident Benefits Schedule 'boggle the mind.' What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2016-10-12 10:02 AM

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