The Ontario minister of finance appears determined to announce major changes to the definition of catastrophic impairment set out in the statutory accident benefits schedule despite warnings by victim advocates and others about the negative consequences of them.
Only in the last two weeks did the minister release the now-dated report by the superintendent of financial services on the definition of catastrophic impairment that outlined recommendations to adopt most of the controversial proposals in the previous catastrophic expert panel reports.
In short, the superintendent has recommended what can fairly be described as a total overhaul of the current definition.
The recommendations include the introduction of a number of new medical tests to evaluate injuries along with standards necessary for acceptance into the catastrophic impairment category.
The contentious nature of the proposals is evident in the superintendent’s recommendation to preclude allowing the combination of psychological and physical impacts when determining if someone qualifies as having suffered a catastrophic impairment, especially given that the Ontario Court of Appeal recently said it would be unfair to make that prohibition.
The release of the superintendent’s report coincided with the completion of a two-day hearing by the standing committee on general government on auto insurance.
At the standing committee, many advocates expressed concerns with the report by the catastrophic expert panel, although they did so without having access to the subsequently released superintendent’s report.
Victims’ advocate groups have expressed extreme concern that the proposed changes will significantly narrow the definition of catastrophic impairment and thus prevent seriously injured accident victims from accessing funds needed for their successful rehabilitation.
That fear appears to be a valid one given the statistical information relied on in the superintendent’s report related to the number of catastrophic claims by year. It indicates that the number of such claims has been rising annually.
The frustration of victims’ advocates culminated earlier this month when four highly reputable personal injury lawyers who had been participating on a provincial auto insurance advisory committee resigned in the face of the anticipated changes.
In the coming months, the minister of finance is expected to announce the highly contentious changes. If he adopts the superintendent’s recommendations, accident victims will suffer.
Darcy Merkur is a partner at Thomson Rogers in Toronto who practises plaintiff-side personal injury litigation, including motor vehicle matters. He is a certified specialist in civil litigation and the creator of the personal injury damages calculator.
