Tort Claim and Accident Benefits Claim

Author(s): Sloan H. Mandel, Wendy Moore Mandel

September 1, 2004

Regular readers of the Thomson Rogers Accident Benefit Reporter are already aware that people injured in motor vehicle accidents often have two potential claims. If someone else is wholly or partially at fault for your injuries, you may have a “tort” claim (a claim against someone at fault). Regardless of who is at fault for the accident, you may have an “accident benefit” claim (a claim under a policy of insurance). This article is intended to address some of the legislative changes under Bill 198 that affect people who have suffered spinal cord injury as a consequence of motor vehicle trauma.

Tort Claim

The single most important change under Bill 198 is the expanded right to sue for medical, rehabilitation and care costs (“healthcare expenses”). Previously, in order to recover healthcare expenses in a tort claim, it was necessary to establish that the victim had suffered a “catastrophic impairment”. This is no longer the case. Now, Bill 198 permits the victim to recover healthcare expenses provided she/he has suffered serious and permanent impairment to an important physical, mental or psychological function, or serious and permanent disfigurement. The effect of this change is that more innocent accident victims will be entitled to pursue a claim for healthcare expenses in tort. An accident victim with injury to the spinal cord will no longer be required to suffer from quadriplegia or paraplegia before being permitted to pursue recovery of their healthcare expenses. Now, accident victims with serious spinal cord injury (i.e. patients requiring a fusion, patients who suffer from a herniation, etc.), will receive access to very important compensation that had previously been denied.

The second most important legislative change under Bill 198 is the amendment to the statutory deductibles. Previously, every claim for pain and suffering was subject to a $15,000.00 deductible. Now, under Bill 198, the statutory deductible is increased to $30,000.00 (bad news). However, for pain and suffering claims that are assessed at more than $100,000.00, the statutory deductible has been entirely eliminated. Accordingly, more compensation will be paid to those persons who have suffered severe spinal cord injury.

In certain circumstances, the accident victim’s family may advance a claim for the detrimental effect that the accident has had on family relationships. Previously, there had been a $7,500.00 statutory deduction for claims of this kind. Now, the deductible has been increased to $15,000.00, unless the loss is greater than $50,000.00, in which case, the deductible is eliminated.

Accident Benefits Claim

In Accident Benefits claims for people who have suffered severe spinal cord trauma, the changes under Bill 198 are generally procedural and do not affect entitlements. Victims remain entitled to enhanced benefits if they are deemed catastrophic. Conversely, if the injuries are non-catastrophic, the amount and duration of medical, rehabilitation and care benefits are greatly reduced.

In Accident Benefits claims, the most significant change for those patients who suffer non-catastrophic trauma to the spine is the streamlined approach to treat whiplash associated disorders (in particular, WAD 1 and WAD 2 injuries). For those who have suffered a WAD 1 or a WAD 2 injury, entitlement to medical and rehabilitation benefits is subject to pre-approved framework guidelines (the “PAF”). Further, entitlement to attendant care has been eliminated in the PAF. In certain circumstances, it may be possible to obtain treatment over and above that which is provided by the PAF guidelines; however, if additional treatment is sought, you will likely encounter a resistant insurer, delay and the need for advocacy.

As always, your opinions, questions and comments are welcomed.

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