May 12, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
A response to the proposed changes to the definition of Catastrophic Impairment under the Statutory Accident Benefit schedule from the Ontario Trial Lawyers Association (OTLA):
The Government of Ontario is considering drastic changes to the definition of Catastrophic Impairment under the standard auto insurance policy.
What is Catastrophic Impairment?
When someone is seriously injured in a car crash, the level of no-fault benefits they receive is governed by the definition of "Catastrophic Impairment" set out in the standard auto insurance policy. Essentially, if a person has a Catastrophic Impairment, they are entitled to claim certain "reasonable and necessary" benefits for treatment and care from their own insurance company. For the past 15 years, the ability of these seriously injured victims to obtain treatment and care has been unchanged.
Now, that level of care that Ontarians have learned to expect from their auto insurance coverage will change if the recommendations from a medical panel are implemented. The changes being considered will make it much more difficult for seriously injured accident victims to be able to access the care and treatment they desperately require. Therefore, the Government must be encouraged to not make these drastic changes until more work is done, for the following reasons –
1) The bar is being set too high - the medical panel assumed that to be considered "Catastrophic", you have to have an injury that is essentially the same as being wheelchair bound. This will prevent many seriously injured accident victims from being able to get necessary treatment and care.
a. People with severe brain injuries who are only able to work at a reduced capacity, who can do less than ½ of their usual social and leisure activities, and who have intolerable family disruption many times a week would NOT be considered catastrophic.
b. People with legitimate psychiatric disorders who have serious symptoms (e.g., suicidal ideation, severe obsessional rituals) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job) would NOT be considered catastrophic
c. People with serious physical and psychological impairments will not be able to have a physician consider whether this combination of problems will render them catastrophic. They can only consider EITHER the physical, OR the psychological impairments, but not both together.
2) The Medical Panel’s work is not complete. This Panel, made up of a few members of the medical community and given limited resources and rushed timelines, is recommending, and the Government is now considering, drastic changes even though the panel has expressly acknowledged that their work is not yet done! They recommend that further study must be done to deal with injuries to children. They recommend that further study must be done to deal
with combining physical and psychological impairments. They have not yet decided how to deal with people who may be catastrophic on an interim basis. How can changes be made when these issues are still up in the air? And what is the hurry? What purpose would be served by introducing such dramatic and revolutionary changes when the panel recognizes more research is to be done?
3) We have 15 years of experience with the current definition of Catastrophic Impairment. The Government is considering adding 4 new, complicated tests, and eliminating the one that is the most simple and the easiest to use (the Glasgow Coma Scale). They are considering adding a requirement that people MUST be accepted into an inpatient hospital rehabilitation program, when there are very limited beds available. All of this will throw our system into disarray, and create even more disputes and more costly litigation. And it is totally unnecessary!
4) The definition of catastrophic impairment is not a medical decision. It is a policy decision based on three considerations: fairness to the most seriously injured people in the Province; affordable premiums for the motoring public; and reasonable profits for insurers. Benefits for all non-catastrophic victims were drastically cut in September of 2010. As a result, auto insurers in Ontario are poised to make, and some have already started to report, substantial profits. There is no upward pressure on premiums. If any changes are going to be made to the definition of catastrophic impairment, those changes should make it easier for seriously injured accident victims to access reasonable and necessary treatment and care, instead of forcing these victims to suffer with the substantially reduced benefits introduced in 2010. It is the only fair thing to do.
5) The Government is considering changes that are clearly discriminatory. People with serious psychiatric disorders are being treated unfairly, as second class citizens. People who live in parts of Ontario with limited rehabilitation hospitals are being treated unfairly. People with chronic pain, a disorder recognized by the medical community and the Supreme Court of Canada as being both legitimate and potentially very disabling, are being treated unfairly. How can our Government consider discriminating against these groups of disadvantaged victims?
Changes to the definition of catastrophic impairment should be made.
Those changes should make it easier for seriously injured accident victims to get the care and treatment they need.
The changes should make the system simpler and easier to navigate.
The changes should be fair to all categories of injured victims.
And the changes should be made based on full and complete research and studies.
The Government is planning to do exactly the opposite.