Change is the name of the game when it comes to Ontario car insurance. It seems that every year our legislature is keen to make changes to our auto insurance laws. Similarly, it would appear we are currently on a five and a half year cycle where the Accident Benefits system gets a substantial overhaul. Unfortunately, history has shown us that these insurance changes are not usually in favour of the injured person. Looking forward, it appears history is about it repeat itself. On June 1, 2016 Ontario Regulation 251/15 comes into force, which will considerably change the current Statutory Accident Benefits Schedule (SABS). The amendments will only apply to accidents occurring on or after June 1, 2016.
Amendments to Non-Catastrophic Benefits
Under the current SABS, a maximum amount of coverage of $50,000.00 is available for non-catastrophically impaired claimants in terms of medical and rehabilitation benefits and an additional $36,000.00 is available for attendant care purposes. The June 1st amendments combine these two categories into one standard benefit. Under this new benefit category the maximum amount available to claimants will become $65,000.00, reducing the overall combined amount previously available by $21,000.00 and forcing injured people to juggle the two benefit types.
Not only will the amount of coverage be decreasing but so too will the duration for accessing these benefits. For those over 18 at the time of the accident, their period of coverage is being reduced from 10 years to 5 years. For those under 18 at the time of the accident, access to these benefits will be available until their 28th birthday.
The current optional medical and rehabilitation benefit and the optional attendant care benefit are being combined into a standard optional benefit. The new standard benefit reduces the amount of optional benefits from $172,000.00 ($100,000.00 for medical and rehabilitation and $72,000.00 for attendant care) to $130,000.00.
Under the current SABS, a maximum of $1,000,000.00 coverage is available for catastrophically impaired claimants for medical and rehabilitation benefits, as well as $1,000,000.00 coverage available for attendant care. For those catastrophically impaired in an accident on or after June 1, 2016, the attendant care, medical and rehabilitation benefits are being combined into one standard benefit – just like what is being done in the non-catastrophic category. For those who quality, fhe maximum level of coverage available under this new benefit is $1,000,000.00, reducing the overall amount previously available by $1,000,000.00
The current optional combined medical, rehabilitation and attendant care benefit maximum available is $3,000,000.00. Following the amendments the optional combined benefit amount will be reduced to $2,000,000.00 with the option to purchase an additional $1,000,000.00. Catastrophically impaired claimants may still have access to the $3,000,000.00 maximum provided that they bought both options.
Not only are the amounts of funding being changed but so too are the criteria for entitlement. June 1st will see significant changes to the definition of catastrophic impairment. Most notably, the new definition completely removes all references to the Glasgow Coma Scale. Instead, the regulation refers to "Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998" as the new tests to be used to determine whether a person has suffered a catastrophic brain injury.
The new definition also overrules Pastore v Aviva Canada Inc., 2012 ONCA 642. In that case the Court of Appeal concluded that only one functional impairment due to a mental or behavioural disorder at the marked level was necessary to declare a claimant's injuries to be catastrophic. Under the new definition mental or behavioural disorders will only be deemed catastrophic if there is a marked impairment in three of the four aspects of function or an extreme impairment in one aspect. Further, the claimant must be precluded from useful function.
The new definition also updates the criteria for amputations, ambulatory mobility and loss of vision. The regulation indicates that the Spinal Cord Independence Measure, Version III must now be consulted when determining whether an individual is catastrophic in circumstances of paraplegia, tetraplegia or a severe impairment of ambulatory mobility.
Finally, the new definition sets out that one must consult the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th edition (instead of the 4th edition) for the purpose of "combining" physical and mental impairments. Along with the 4th edition's system for rating other impairments, the new definition directs one to use the 6th edition's methodology for assigning a Whole Person Impairment to certain mental and behavioural conditions.
Currently, non-earner benefits are available to injured claimants who are 16 years of age or older and these benefits remain available for their lifetime. There is a six-month waiting period following the accident before these benefits become payable. Once payable, they continue for life so long as the claimant continues to qualify. Non-earner benefits are currently payable at a rate of $ 185.00 weekly. For students the weekly amount increases to $320.00 weekly at the two year anniversary of the accident.
Under the new regulations, for accidents occurring on or after June 1, 2016, non-earner benefits will only be available to claimants who are 18 years of age or older and are available for a maximum of two years. The six-month delay is reduced to a four week delay. The increase previously available to students has been eliminated.
The above only highlights some of the major changes that are coming our way. We are entering a new era of accident benefits where, undoubtedly, there will be even less funding available for the majority of accident victims. There is sure to be growing pains and a learning curve for insurers and medical assessors who will have to learn the new tests and texts that will be relied upon when making a catastrophic determination. While it is expected that the damages recoverable in tort claims will also increase, due to the decreased availability of statutory accident benefit credits, a number of seriously injured claimants who do not have tort claims will be left to contend with insufficient benefits. It is also worthwhile to consider the effect that insufficient benefits may have on the public health care system. Time will only tell whether these changes will be tolerated; but, for better or for worse, the changes are coming and look like they are here to stay.
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