In Ontario, every automobile insurance policy provides no-fault accident benefits coverage, which is regulated by the Statutory Accident Benefits Schedule (known as Ontario Regulation 34/10). Accident Benefits serve as a lifeline for injured persons, providing essential protections, such as medical care and weekly indemnity payments.
On August 27, 2015, the Ontario government announced changes to Accident Benefits, by way of Ontario Regulation 251/15, which are to take effect on June 1, 2016. These changes will drastically reduce much needed funding to accident victims. In particular, it will diminish their access to rehabilitation, non-earner benefits, and attendant care, which will add pressure on the already strained public health care system.
As of June 1, 2016, the following changes will take effect for accidents occurring on or after June 1, 2016:
Reduction in Non-Catastrophic Benefit Limits
The availability of medical and rehabilitation benefits plays an essential role in lessening the effects of disability, and facilitating meaningful reintegration into family life, the labour market, and society. Attendant care benefits are equally important, by providing funding for the services of an in-home care attendant or for admission to a long term care facility. Attendant care benefits are intended to support activities of daily living, such as bathing and eating.
Currently, non-catastrophic benefits, which includes medical and rehabilitation benefits, and attendant care benefits, is payable to a maximum of $86,000 over a 10 year period ($50,000 for medical and rehabilitation benefits, plus $36,000 in attendant care benefits).
As of June 1, 2016, this will be reduced to a combined total of $65,000 over a 5 year period. The change in duration of benefit period, reduced from 10 to 5 years, will not apply to children under 18 at the time of the accident.
The Definition of “Catastrophic Impairment” is Narrowed
The designation of “Catastrophic Impairment” is applied to the most severely injured individuals. Those who are catastrophically impaired have suffered severe loss, including but not limited to, paraplegia, quadriplegia, blindness, loss of an arm or a leg, and serious brain injuries.
The upcoming legislative amendments have introduced significant changes to the definition of catastrophic impairment. The new definition will update criteria for traumatic brain injuries, amputations, ambulatory mobility, loss of vision, and mental and behavioural impairments. The Glasgow Coma Scale test will no longer be applied.
Mental and behavioural disorders will qualify for catastrophic status only if the claimant suffers from marked impairment in three of the four categories of function, or extreme impairment in one category, and the person must be precluded from useful functioning. Previously, an injured person would qualify for catastrophic impairment with a marked impairment in one of the four categories of function.
These amendments serve to narrow eligibility for designation of catastrophic impairment, and erode the availability of benefits to those persons who have sustained serious injuries that do not fall within the more limited parameters of entitlement.
Catastrophic Impairment Benefit Limits Halved
Individuals with catastrophic impairments are dependent on their accident benefits to provide financial security in all sectors of their lives. Some individuals require attendant care 24/7, while others require a multi-disciplinary rehabilitation team.
Currently, individuals who are catastrophically impaired are entitled to a maximum of $2,000,000.00 – this includes $1,000,000.00 for medical and rehabilitation benefits, and $1,000,000.00 for attendant care benefits.
This amount will now be cut in half for a combined total of only $1,000,000.00 for all medical, rehabilitation and attendant care needs.
Non-Earner Benefit is Significantly Reduced
Non-earner benefits are available to injured persons who were not employed at the time of the accident, and are not eligible to receive income replacement benefits. Currently, non-earner benefits are payable for life, after a waiting period of 26 weeks, and as long as the injured person continues to meet the statutory test for eligibility. Non-earner benefits are payable at $185.00 per week up to the two year post-accident mark, and for some, this may increase to $320.00 per week after the two-year mark.
As of June 1, 2016, the duration of payment of non-earner benefits will be reduced to a maximum of two years following the accident, but the initial waiting period is reduced to 4 weeks.
The effect of this change will be felt most by those individuals who, at the time of the accident, were students and seeking entry into the workforce. For example, a university student who is severely injured in an accident, such that they may never be able to be gainfully employed, will only receive non-earner benefits for a period of 2 years following the accident. After 2 years, they will be left with no income supplement from their accident benefits insurer.
The Right to Sue and Arbitrate is Eliminated
Injured persons will no longer be entitled to commence a lawsuit against their auto insurance company for the wrongful denial of accident benefits. Nor will individuals be able to arbitrate their denied accident benefits.
Instead, the new regulation provides only one option, which is to commence a proceeding at the Ontario Licence Appeal Tribunal (“LAT”).
As of April 1, 2016, the LAT will be implemented.
Bogoroch & Associates LLP has extensive experience in motor vehicle accident litigation and accident benefits. Bogoroch & Associates LLP strongly believes that victims of motor vehicle accidents are entitled to access to justice. Please contact Richard Bogoroch (firstname.lastname@example.org) or Yoni Silberman (email@example.com) for further information on how we can assist you or your family member.
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