Fight Continues for Access to Benefits for Severely Injured Accident Victims

The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident.  The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment.  This is not akin to a lottery ticket.  A catastrophically injured person must still prove that the benefits are reasonable and necessary.  All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need.  Last week, an expert medical panel completed a review of the definition of catastrophic impairment.  The recommendations are based on a technical review.  In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.

The text of the article is reproduced below:

‘Catastrophic impairment’: What’s at stake

Published On Sun Apr 17 2011

Dale Orlando
President of the Ontario Trial Lawyers Association

“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”

As the provincial government receives an expert medical panel report on what constitutes “catastrophic impairment” resulting from car accidents, it’s important to understand what’s at stake for all of us.

This review was handled separately from auto insurance revisions that took effect last September and resulted in a significant reduction in benefits for the majority of accident victims.

At issue now is the definition of catastrophic impairment. In basic terms, this is the test that determines who, out of the most seriously injured auto accident victims in Ontario, will be able to access the treatment and care that they require.

While this expert review is expected to focus on the technical issue of how to determine what constitutes a catastrophic impairment from a medical perspective, the review of the definition must not be just an academic exercise. This report, if accepted by the government, will determine whether or not accident victims get the care they need in the years to come.

In reviewing the report, here are a few critical points to consider:

1. Is there any argument for limiting “catastrophic” coverage?

The Ontario Trial Lawyers Association, on behalf of injured accident victims, asked both the Financial Services Commission of Ontario (the government body that oversees these insurance issues) and the Insurance Bureau of Canada for data to back the industry claims that costs for catastrophic cases have been increasing. Both reported that they did not have any supporting data in this area.

The only data available from insurers suggests that large claim losses appear to be declining. The latest financial data for the industry suggest most insurers are returning to profitability and that the substantial auto insurance changes in September, which reduced most benefits, appear to be more than sufficient to support the financial health of the insurance industry.

It seems reasonable to wait some months to evaluate the full impact of the September 2010 changes before contemplating any further policy restrictions, particularly those that only benefit insurers’ bottom lines at the expense of the injured.

Insurers have even suggested that the current definition of catastrophic impairment allows for someone with “much less serious injuries” to obtain the same benefits as a person with quadriplegia. This is clearly wrong, for several reasons.

First, it implies that the benefits paid to these injured consumers are somehow a windfall. In fact, the injured consumer must prove that every dollar claimed is both reasonable and necessary based on medical evidence. The insurers have several options of disputing this evidence if they disagree. Further, the amounts are paid to health-care professionals and others providing the needed care, not to the injured victim.

2. Will the critically injured get the care they need?

Each year in Ontario, there are thousands of people who sustain serious injuries in car crashes. The injuries they suffer will have an impact on their ability to function for the balance of their lives. There is really no debate about the most seriously injured accident victims and the care they need. Yet, the definition of catastrophic impairment as it currently stands does not ensure that all of the most grievously injured accident victims would qualify to be considered for enriched benefits.

The real challenge is even greater now that basic coverage was cut in half last September — from a maximum of $100,000 down to $50,000. This change leaves an even wider gap between basic coverage and the enriched benefits available to the catastrophically impaired. Because of the September 2010 auto insurance coverage changes, these benefits will run out sooner and victims will be left to pay out of pocket for care, rely upon publicly funded sources of care and treatment, or go without it entirely.

We need to be confident that our car insurance, which we are required to buy, is always there for us but particularly so when the need is extreme. The government should take this opportunity to affirm that all injured accident victims should get adequate care, with a special emphasis on the most seriously injured victims.

Patrick Brown


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