New Changes to Accident Benefits 2016

In Ontario, there are two avenues of compensation that victims of a car accident (including passengers and pedestrians) may claim to cover the costs of their medical bills, and other expenses:

No Fault Insurance: All drivers are required to carry a legal minimum in third-party legal coverage and accident benefits coverage. Accident benefits coverage acts as compensation that a driver, their passengers or pedestrians may claim regardless of fault in the event of injury from a motor vehicle accident. These benefits may include the costs of medical rehabilitation, income replacement, attendant care, or the cost of assessments.

Tort Claim: Victims of a motor vehicle accident may also sue a driver and their insurance company for injuries and damages sustained in the accident outside what they have already claimed from accident benefits. This may also include general damages such as pain and suffering (edit: but it is important to consider that there are new legal implications to this type of compensation.)

This article will address the recent changes that have been made to accident benefits and explain to claimants why it is so important to seek legal advice from a personal injury lawyer if you have been injured in a motor vehicle accident in Ontario:

Lower Catastrophic Impairment Limits: The prior SABS limits for a catastrophically impaired claimant were $2 million combined total ($1 million each for medical/rehabilitation benefits and attendant care benefits). This has now been reduced to a combined total of only $1 million.

Limitations in the definition of ‘Catastrophic Impairment’ (‘CAT’): The Glasgow Coma Scale test was a simple and quick way to obtain the designation of CAT. This requirement has now been removed from the designation.

There is now a requirement for 3 ‘marked impairment’ domains or an ‘extreme impairment’ in one domain pursuant to the American Medical Association (AMA) Guides 4th edition. This is an increase from the previous requirement which needed a marked impairment in only one domain.

Adult Brain Injuries will use the Glasgow Outcome Scale Extended (GOS-E) along with brain imaging to determine if the brain injury qualifies for a CAT designation. To achieve a CAT designation, the GOS-E rating needs to be: a vegetative state (VS) one month after the accident; upper severe disability (SD+) or lower severe disability (SD-) six months after the accident; or lower moderate disability (MD-) one year or more after the accident.

WPI ratings will use the AMA Guides 4th edition to rate physical impairments and the AMA Guides 6th edition for mental behavioral (non-traumatic brain injury) impairments.

A minor will be considered a CAT if they meet any of the following criteria: brain diagnostic reveals a TBI; admission as an in-patient to a recognized neurologic rehabilitation facility; category 2 (vegetative state) on King’s Outcome Scale for Childhood Head Injury one month or more post-injury; category 3 (severe disability) on the King’s Outcome Scale for Childhood Head Injury six months or more post injury; or nine months or more after the injury, the minor is not age-appropriately independent and requires supervision for the majority of the waking day.

Paraplegia, tetraplegia, amputation and vision loss have narrower definitions under 3.1(1) par 1-3 of the SABS.

Non-Catastrophic Benefits Reduced: For injuries that fell between minor injuries (MIG) and CAT, a reduced combined total of $65,000 for medical, rehabilitation and attendant care benefits will be implemented (down from the previous $50,000 for medical/rehabilitation and $36,000 for attendant care benefits).

Non-earner Benefits Reduced: Unemployed students, stay-at-home parents and other individuals who fall under the weekly non-earner benefit and qualify as those completely unable to carry on their activities of a normal life are capped in their benefit up to 2 years post accident instead of for life. However, there will also be a short waiting period of 4 weeks post accident instead of the previous 6 months waiting period.

“Other Goods and Services” are Essential Insurer Agreement: The previous requirement for uncommon expenses as “reasonable and necessary” has been changed so that the insurer is only responsible if they agree that the ‘other goods and services’ are essential.

What Can We Take Away From This?

With the changes in the SABS, claimants who are lost in the limbo of requiring treatment beyond the new limitations will have to seek those losses in their tort claim. The result may be a more lengthy and difficult process for future claimants.

It is important to speak with a personal injury lawyer if you have been injured in a motor vehicle accident in light of these new changes.

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