Law Times

Law Times • OcTOber 15, 2012 Catastrophic impairment victory a double-edged sword FOCUS A BY JUDY VAN RHIJN For Law Times strophic impairment, plaintiff lawyers worry that the decisions will motivate insurers to increase pressure on the government to re- strict auto insurance benefits even further than the substantial reduc- tions it already made. Roger Oatley of Oatley Vig- s the Ontario Court of Appeal continues to clarify and broaden the definition of cata- qualifies for catastrophic impair- ment if they're markedly im- paired in just one of four relevant categories. It found that one was sufficient. It also concluded that a cumulative approach was in or- der when it' mond LLP appeared for the plain- tiff in Pastore v. Aviva Canada Inc., the most recent in a trilogy of cases in which the Court of Ap- peal has overturned restrictive interpretations of the definition of catastrophic impairment. The appeal court ruled on whether someone who' s seriously injured will be of sufficient concern to the insurance industry that they will lobby hard to get the government to move forward with implement- ing the superintendent' on catastrophic impairment," says Oatley. Ontario Trial Lawyers Asso- s report ciation president Andrew Mur- ray feels the insurance industry couldn't lobby any harder than it already is but notes that his orga- nization and its allies are working just as hard and with some suc- cess. "I believe the OTLA should be given credit for the govern- ment finally releasing the report as it came out the same day that we started a major advertising cam- paign against the changes," he says in reference to the superinten- dent' had been holding onto since 2011. The Ministry of Finance invited submissions on the report by Aug. 10 but hasn't made the submis- sions public as yet. Murray believes the controver- s report that the government out the impact of discrete physical impairment and associated pain limitations even when they relate to a mental disorder. "I fear that the Pastore decision s not possible to factor STEVE NOYES I. T. Consultant Volunteer shocked that the committee would even come up with the model that became the blueprint for the report," he says. "When we reviewed the freedom of infor- mation documentation, we saw that it was the inevitable conclusion based on what they were asked to do and how they were asked to do it." In explaining the limitations placed on the Pierre Côté, chairman of the panel, made this comment: "How things are done in the field is beyond the scope of this project." The position taken by panel, Murray showed the standing committee a piece of paper and asked members to imag- ine that it contained everything known about auto insurance. He then folded it in half. "The experts were told to only look at one half of the paper and pretend they didn't know anything about what' veal considerable doubt and frustration among the panel members about their task. There are numerous comments that refer to the financial and legal considerations involved in formulat- ing an appropriate test, yet their instructions were to ignore the cost implications and come up with a scientific prescription. "The doctors themselves recognized that it is a medical-legal test and cannot be a purely medical test," says Murray. The expert panel also expressed frustration at its inability to examine the relevant science. "It was an extremely artificial construct." The transcripts of the panel discussions re- s on the back," he says. the Alliance of Community Medical and Rehabilitation Providers is that it' ture for the government to even consider making any changes to the catastrophic definition at this time given that the panel didn't have time to do a full literature review and as studies are necessary to ensure the tools recommended are valid and reliable. In addition to the tran- s prema- available and yet another motorist-friendly decision from the Court of Appeal, plaintiff lawyers are hoping the standing committee' With this data now recommendation might stem the tide of benefit re- ductions. But Nick Gurev- ich, president of the alli- ance, worries the changes will go ahead despite the fact that the Court of Ap- peal has moved on two is- sues that are central to the superintendent' s 'The decisions of the courts are making the definition and the operation of the system fair for accident victims,' says Roger Oatley. scripts, financial data from the insurance industry is now available that shows the ma- jor positive effect that the 2010 changes have had on insurance operations. Overall, profits jumped to $1.5 billion in 2011 from $180 million in 2010. In 2011, auto insurance claims dropped sharply. The most dramatic change involved medical and rehabilitation coverage. Pain has been disregarded by the superinten- dent. These two issues alone account for a very significant number of people who are currently categorized as catastrophically impaired but won't be going forward. The alliance is very concerned that funding to the most vulnerable will be constrained when there are no other sources in the system to take care of those who will have a lifetime of need. combining physical and mental injuries. The second is that pain is also rateable. " LT "The first is the issue of s report. PAGE 11 sy also spawned the recent hear- ings into the auto insurance indus- try held by the standing committee on finance and economic affairs. It heard submissions on five major issues: the presence of fraud in the auto insurance system, the impact of the 2010 reforms, the review of the definition of catastrophic im- pairment, the treatment of minor injuries, the Financial Services Commission of Ontario' resolution services, and the use of territorial ratings. In what Murray calls a "tre- s dispute mendously important develop- ment" this summer, the OTLA also received the transcripts of the expert panel deliberations that led to the report pursuant to a free- dom of information application. "In the beginning, we were rather Untitled-1 1 Financial security. Guaranteed payments. 100% tax free. Some decisions are easy. The McKellar Structured Settlement™ www.lawtimesnews.com 12-05-08 11:11 AM

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