This is the third of a series by Patrick Brown on the upcoming changes to auto insurance in Ontario.
After September 1, 2010, if you are hurt in a car accident and are deemed to suffer a “minor injury”, do not expect to get much help. Although the legislative intent was to simplify the system, reduce extraordinary assessment and administrative expense and reduce the number of smaller claims, this new category of injury may have a significant impact on injuries that may be anything but “minor”.
For those suffering a “minor injury”, your benefits will be dramatically reduced. Instead of $100,000 being available for medical and rehabilitative benefits this will drop to $3,500. What is concerning is that this will include assessment costs. The benefit is almost meaningless. As well housekeeping, care giving, and attendant care benefits will no longer be available.
The wording of “minor injuries” is similar to the Alberta legislation which was brought in 2004. A “minor injury” means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae”
The regulation goes on to define
“sprain” means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear;
“strain” means an injury to one or more muscles, including a partial but not a complete tear;
“subluxation” means a partial but not a complete dislocation of a joint;
“whiplash associated disorder” means a whiplash injury that,
(a) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and
(b) does not exhibit a fracture in or dislocation of the spine [1];
A “minor injury” as defined includes partial but not complete tears to ligaments, tendons and muscles. A partial torn ACL would be included in the definition. The Minor Injury Guideline will also provide a guideline for goods and services under this new category[2]. Any amounts paid under the Guideline will be included in the 3,500 cap. FSCO has established the “MIG” Committee which will be looking into establishing the Guidelines. The Committee is similar to the previous PAF committee.
What is or is not a minor injury under these definitions will be seen. For those seeking to avoid clients falling into this restrictive category, consideration must be given to Section 18(2) which deals with those persons who have pre existing medical conditions. The Section states:
(2) Despite subsection (1), the $3,500 limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline[3]
As noted above, the regulation requires “compelling evidence” from the persons own health practitioner. The definition of “health practitioner” includes physicians, OTs, physiotherapists, registered nurses and chiropractors. It is the health practitioner who “determines” the issue. Subject to what is to be considered “compelling evidence”; the determination will not be subject to dispute.
