A CATASTROPHIC AMBUSH

As part of the provincial budget announced on April 23, the Ontario government has decided to first throw seriously injured accident victims off the bus and then deprive them of the ability to make a good recovery. The announcement comes as a total blindside to interested stakeholders.

Historically, whenever the Ontario government was considering major changes to automobile insurance legislation, there was widespread consultation between stakeholders. That consultation process consistently revealed that it was common ground between all stakeholders that it was sacrosanct to reduce the benefits available to the most seriously injured persons. As a result, prior changes focussed on changes other than reductions in the benefits available to the ‘catastrophically impaired’.

The government’s announcement includes five major changes. Each change reduces the funding available to accident victims. Each change reduces the chance for an accident victim to regain their independence. Each change results in further pressure on the currently under-resourced public health care system.

The changes, in order of least significant to most significant, are:

1. A reduction in the benefit maximums in non-catastrophic impairment claims from the current total maximum of $86,000 (being $50,000 for medical and rehabilitation benefits plus $36,000 in attendant care benefits) to a combined total of $65,000 (a $21,000 total reduction, equivalent to about a 25% reduction). In addition, the duration for accessing these benefits has been shortened from 10 years to 5 years, except in cases involving children. Prior to September 1, 2010, changes, these benefits totalled $172,000, so the new reduced maximum, after accounting for inflation, is about a 65% reduction from the benefits available prior to 2010.
2. A reduction in the duration of eligibility for non-earner benefits from ‘life’ to a maximum duration of 2 years (albeit without the 6 month waiting period that currently applies). Non-earner benefits were regularly claimed by students, stay-at-home parents, the elderly and the unemployed. This change will impact students the most as students had previously qualified for a higher weekly benefit rate (of$320 a week) after 2 years. For example, a seriously injured teenager that will never work again because of their accident-related injuries will now be prevented from accessing this weekly benefit that would have been present valued at more than $500,000.
3. Indexing the tort deductibles to inflation since 2003. This change means that anyone with a valid claim for pain and suffering will face an inflated deductible of roughly $37,000 instead of the current $30,000 deductible, unless their pain and suffering award is assessed at more than the inflated vanishing deductible of roughly$123,000 (inflated from the current $100,000 amount). While this change is arguably an attempt to adjust the previous deductibles to the level that was intended in 2003, it is notable that the accident benefit limits have all remained unchanged by inflation for the last 20 years.
4. The intention to revise the definition of ‘catastrophic impairment’ purportedly in an effort to capture only the most seriously injured persons. Given that the expert panel on this issue had recommended the removal of the simple, efficient and popular Glasgow Coma Scale (GCS) test, the revised definition will undoubtedly be seen as a significant narrowing of the ‘catastrophic impairment’ designation. Moreover, by changing the now well-understood tests that have been in place for close to 20 years and by eliminating the simple and easy GCS test, identifying who will qualify as ‘catastrophically impairment’ will be challenging and accessing the designation will be delayed, causing negative impacts on a claimant’s rehabilitation.
5. A reduction in the maximum benefits available to ‘catastrophically impaired’ persons from $2 million ($1 million in medical and rehabilitation benefits plus$1 million in attendant care benefits) to a total of $1 million (i.e. a 50% reduction). This $2 million total maximum has been in place for roughly 20 years and, after accounting for inflation on all of the benefits available (none of which have been adjusted for inflation since at least 1996), these further benefit changes will result in access for quadriplegic (and other catastrophically impaired) claimants to roughly 70% less than what was available back in 1996.

Insurance, by its nature, is there to protect against unexpected events. The government’s announced reductions to automobile insurance benefits provide no such protection. The changes serve to defeat the very purpose of mandatory automobile insurance in Ontario.

These changes are being made by the government as part of an attempt to address political pressure to reduce automobile insurance premiums. However, the changes are being made without an investigation into the legitimate questions that have been raised about the excessive profits that are being made by the very insurers that the government is trying to appease and before the savings from the last round of changes have been assessed.

Through these reductions, the Ontario government has sacrificed the most vulnerable citizens for political gain.

If you have any questions, contact personal injury lawyer Darcy Merkur at 416-868-3176 or by EMAIL.

Darcy Merkur is a partner at Thomson Rogers in Toronto practising plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. Darcy has been certified as a specialist in Civil Litigation by the Law Society of Ontario and is the creator of the Ontario Personal Injury Damages Calculator.