Motor Vehicle Accidents: The Effects of the Legislative Changes to the Ontario Statutory Accident Benefits Schedule on the Catastrophically Impaired

Individuals who have been injured in a car accident in Ontario are entitled to claim accident benefits or no-fault benefits from their insurance company. The rules that govern these benefits are found in the Statutory Accident Benefits Schedule (“SABS”). Individuals who suffer from catastrophic impairments are entitled to benefits in addition to the standard benefits provided through the SABS. On September 1, 2010, amendments were made to the SABS that have presented several notable implications for individuals who suffer from catastrophic injuries as a result of car accidents.

Several injuries that qualify as catastrophic impairments include paraplegia, quadriplegia, the loss of vision in both eyes, and brain impairments. Impairments or a combination of impairments that affect 55% or more of the whole person, or marked or extreme impairments due to mental or behavioral disorder can also be considered catastrophic impairments. Due to the new legislative amendments, an individual must suffer from a brain impairment to be considered catastrophically impaired before two years following the date of the accident within the whole person impairment or marked or extreme impairment categories. In addition, since September 1, 2010, the amputation of an arm or leg or the total and permanent loss of use of an arm or leg are considered catastrophic impairments.

The limit for medical and rehabilitation benefits for catastrophically injured persons has remained at $1,000,000 following the September 1, 2010 changes. Assessments, examinations and reports incurred by or on behalf of the insured person are now taken from an individual’s entitlement to medical and rehabilitation benefits instead of being an insurer’s expense, as was previously the case. This change can amount to a significant reduction of benefits to which an injured individual is entitled.

One challenge that has arisen since the legislative changes is that more individuals must now wait until two years following their car accident to be determined catastrophically injured. As the benefits for non-catastrophic cases have been reduced to $50,000 for medical and rehabilitation benefits and $36,000 for attendant care benefits, many individuals will reach their maximum limit of benefits before they are entitled to apply for a catastrophic determination. This may limit individuals from being compensated for the medical expenses they incur and may also limit the ability of individuals to fund the costs of the assessments required to prove that their injuries are catastrophic.

Although there is a provision in the SABS that provides for ongoing attendant care benefits to be paid until a catastrophic determination is made, this provision only applies if the individual is receiving attendant care benefits two years following the accident.

As the attendant care benefit entitlement of a non-catastrophically injured person has been reduced, many individuals will reach this maximum benefit allowance after the first year following the accident. The SABS provides for retroactive benefits to be paid upon the determination of a catastrophic impairment, however, those benefits could take some time to receive, during which time the injured individual would be required to live without the treatments or services he or she requires or be required to fund the treatments or services out of his or her own pocket.

A further challenge since the September 1, 2010 legislative amendments is that any goods and services received for medical and rehabilitation, attendant care, housekeeping, and caregiving purposes must be provided by a person who ordinarily provides the service during the course of his or her employment, occupation, or profession. Alternatively, the individual providing the good or service must have sustained an economic loss as a result of providing the goods or services to the insured. This change limits the ability for individuals to have services provided by family members or friends reimbursed if those friends or family members do not sustain an economic loss such as missing work to provide the service. It could also negatively impact individuals whose limits under the SABS are not sufficient to cover the amount of services required.

Those who suffer from catastrophic injuries are likely to face many challenges when navigating the no-fault system. This has been more evident since the recent SABS legislative changes.

Should you have any questions or require assistance with any matters related to your car accident, or any other personal injury matter, please contact me by e-mail at newman@cohenhighley.com or by phone at (519) 672-9330. If corresponding by e-mail, please be sure to include your name, telephone number, and a brief message.