Catastrophic Injury Impairment

Changes to Statutory Accident Benefits Schedule and Catastrophic Injury

Automobile insurance is constantly changing . It seems that the government continues to strip away at some of the most vital services required for injured people, especially those who are severely injured and need it most, those with a catastrophic injury. The new definition will apply to all accidents in Ontario on or after June 1, 2016. The Statutory Accident Benefits Schedule (“SABS”) provides accident benefits for people who are  involved in a motor vehicle accident in Ontario. Regardless of whether or not they were at fault, or whether or not they were a driver, passenger or a pedestrian. 

Definition of Catastrophic Injury Impairment

Many of the changes are in the area of Catastrophic Injuries. The most significant of the reductions in Accident Benefits are in the Medical and Rehabilitation and Attendant Care benefits for individuals with catastrophic and non-catastrophic injuries.

There are also new measures used to assess whether or not someone is deemed “catastrophic”. 

1- Paraplegia or Tetraplegia

The two scales or measures that are the primary source for the catastrophic determination for spinal cord injuries are the The ASIA -International Standards for Neurological Classification for Spinal Cord Injury as well as the SCIM Spinal Cord Independence Measure Version III  The definition of “catastrophic impairment” has been revised to reflect current medical studies.  

2-Residual Neuro-Urological Impairment or Urological Impairment

3-Loss of vision of both eyes

4-Traumatic Brain Injury

When assessing whether or not a patient has sustained a catastrophic brain injury, the appropriate health professional must conduct, among other things, the following clinical interview: a Structured Interview for the Glasgow Outcome Scale.

5-Traumatic Brain Injuries for person under the age of 18 at the time of the accident

The scale is dependent upon imaging of the brain, extent of admission to a rehabilitative facility and the King’s Outcome Scale for Childhood Head Injury, as published in Crouchman, M. et al

 

And where 2 or more years have elapsed since the accident, or where, after 3 months, a physician is of the belief that the patient’s condition is unlikely to improve and,

6- Physical Impairment

55% or more physical impairment of the whole person pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (1993)

7-Mental or Behavioural Impairment Combined with Physical Impairment

A mental or behavioural impairment, excluding traumatic brain injury, that, when the impairment score is combined with a physical impairment described in paragraph 6, results in 55 percent or more impairment of the whole person.

8. Mental or Behavioural Impairment

An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.

Along with these tests, a patient must also undergo a neuropsychological assessment and must meet the following criteria to obtain what is deemed “catastrophic status”. The patient must have positive MRI findings, vegetative or disability rating on the Glasgow Outcome Scale (as mentioned above) , significant decreased activities of daily living via client interview, interview of treating practitioners (mentioned above)  and/or a file review of collateral medical documents. 

The definition and criteria for a catastrophic injury can be confusing and complex.  We have provided a quick snapshot here.  Our personal injury lawyers are happy to speak with you to go over any specific questions you may have. 


What is implied consent? Our Ottawa injury lawyers explain…

Does no consent mean implied consent?

What happens if someone uses your vehicle without your consent and causes an accident or injury? Is this implied consent ?

Implications when lending your car.

In the recent case of Michaud-Shields v. Gough, the defendant driver had a suspended license and did not have the consent of the vehicle owner (Nancy) to drive the vehicle. The owner had made it clear to her son (Justin) that he would not be allowed to use her truck until his license was re-instated. He took the vehicle anyway, and it resulted in an uninsured automobile coverage claim.

The Highway Traffic Act, RSO 1990, c.H.8, sets out, at section,192(2):

A motor vehicle owner is liable for the losses arising out of another person’s negligent operation of his/her vehicle unless that vehicle was in the other person’s possession without the owner’s consent at the time the negligent act occurred.

Traders General, Justin’s carrier, motioned for a summary dismissal, based on their position that, although Nancy had not given Justin her verbal consent, he was driving with her implied consent, because the keys were not hidden from him in her home.

Justice de Sa, however, found that a “lack of appropriate diligence to prevent use” does not constitute implied consent for the vehicle’s use. The presence of the vehicle on the defendants’ premises, with the keys on a hook inside the door, did not represent “the right to possess the vehicle” or “an understanding that the vehicle may be driven”.

In arriving at his conclusion, Justice de Sa noted:

[25] Traders argues that Nancy did nothing to prevent Justin’s access or use to the vehicle, and she did not expressly forbid him to drive the vehicle while she was away. According to Traders, Nancy’s decision to leave the vehicle in the driveway with the keys on the hook essentially invited Justin to drive the vehicle. Given that Justin was left with “possession” of the vehicle, Traders maintains that Nancy should be liable for his actions while the vehicle was in his possession. According to Traders, consent should be implied in the circumstances, particularly in light of the broader policy issues in play.

[26] I don’t accept Traders’ proposed interpretation of consent. In my view, the suggested interpretation is far too broad. Traders’ position seems to impose liability on an owner for an accident unless steps are taken to prevent unauthorized use of the vehicle. The approach essentially requires that an owner hide their keys in order to avoid liability. However, in my view, this is hardly what is contemplated by s. 192(2) of the Highway Traffic Act. Nor does Traders’ suggested interpretation accord with the ordinary meaning of “consent”. […]

[28] No doubt permission to use the vehicle need not be express. If there is a general understanding that someone is allowed to use the vehicle, there need not be “express” permission to find liability in a particular case. However, to import a notion of liability on the basis of a lack of appropriate diligence to prevent use is to take the meaning of consent much too far. Indeed, if Traders’ position were accepted, arguably a thief would be found to have the consent of the owner to possess the vehicle. […]

[30] There must be an understanding between both the owner and the driver (either express or implied) that the driver is authorized by the owner to use the vehicle.

[31] In this case, on the evidence before me, there was no consent given to Justin to drive the vehicle. The evidence filed on the motion indicates the exact opposite. Both Justin and Nancy indicated that there was no consent. Traders does not contest their evidence on this point.

Justice de Sa dismissed the motion.


Car thefts and insurance claims

Who is liable in  insurance claims if the vehicle is stolen?Ontario Accident Insurance Claims

Lock your car doors. You may be liable to lose more than you think and it could affect your insurance claims.

What’s the worst that could happen when a car door is left unlocked in a driveway or parking lot? Most would assume that their car, or the belongings inside it, could be stolen. The consequences turned out to be much worse in a recent case involving an Ontario garage and dealership . The Supreme Court of Canada looked at the insurance claims and recently ruled that the owner of that garage owed a duty of care to a minor who was injured in one of their unlocked vehicles after it was stolen.

On a summer evening in 2006, two teenagers walked around their hometown with the intention of stealing from unlocked cars before finding themselves at Rankin’s Garage & Sales — a business that serviced and sold cars and trucks. The garage property was not secured, and the two found an unlocked Toyota Camry with keys left in the ashtray. Despite not having a driver’s license or any driving experience, one teen got behind the wheel and set off for a joyride with the plaintiff as his passenger. The vehicle crashed, and the plaintiff suffered a catastrophic brain injury.

Difference levels of responsibility in insurance claims

The victim sued and the Trial Judge determined that the garage owed a duty of care to the minor plaintiff and a jury apportioned 37% responsibility to the garage for the teen’s injuries. The primary issue on appeal was whether the Trial Judge had erred in finding that the garage owed a duty of care to the plaintiff in the circumstances, which included his participation in the theft. The Garage appealed.

The Court of Appeal decides on insurance claims

The Court of Appeal found it reasonably foreseeable in the circumstances that minors might steal an unlocked car with keys in it and injure themselves doing so. The basis for this conclusion was that Rankin’s Garage was easily accessible, there were no security measures to keep people off the property after hours, cars were left unlocked with keys in them, and there was evidence of a history of theft in the area and from the garage itself.

The Court of Appeal concluded that the garage should have had minors in mind when considering security measures, and that the care and control of many vehicles imposed a responsibility of securing them against minors. Securing vehicles by locking them and keeping keys secure was the garage’s responsibility.

We all know that there are possible dangers in leaving our vehicles unlocked, but we don’t often think beyond the obvious. A case like this should be a reminder that cars, machinery, and tools can cause harm to those who are not experienced in using them safely. Owners of these items have a responsibility to make sure that they do not fall into the wrong hands.

A business that leaves a car unlocked with the keys inside will not necessarily be responsible when someone is injured after the car is stolen, the Supreme Court has ruled. The business will only be responsible where it should have known both that the car could be stolen, and that someone could be injured due to it being driven unsafely.

 


Accidents in Ontario on the rise.

Accidents in Ontario on the rise

In a recent article written for the Advocate Daily, we commented on a report indicating a five-year high for fatalities for accidents in Ontario on OPP patrolled roads and waterways. We said that we were not surprised there were more accidents in Ontario given the growing number of vehicles on the road each year. That, combined with the increased use of electronics and hand-held devices in vehicles has created deadly distractions for drivers today.

Accidents in Ontario statistics

The report, produced by the OPP, highlighted some startling statistics from our roadways.

· 343 people died in collisions in 2017 compared to 307 in 2016, with the increase coming from driver inattention, speed and not wearing seatbelts

· 91 people died in collisions that involved a commercial transport truck in 2017

· 48 motorcyclists died in 2017

Driver Error is a Key Factor in Accidents in Ontario

A further look into the causes of these accidents show that driver error is a key factor. In addition to being distracted, drivers are failing to come to a complete stop and intersections, misjudging the speed of oncoming traffic when stopping or merging and they are driving recklessly.

Sometimes things are beyond the driver’s control such as road disrepair and weather conditions. And sometimes the condition of the vehicle can contribute to the accident. Faulty brakes, broken signal lights windows or mirrors all increase the likelihood of an accident. It is always the responsibility of the driver to ensure that the vehicle is in good repair, that it is serviced regularly and that does not have an outstanding recall.

To prevent another increase in our provincial accident statistics, there are a few things that you can do to keep our roadways safe.

Adopt a Three Second Rule 

Experts suggest that you leave a three second gap between your vehicle and the one in front of you. To do this, pick a stationary landmark such as a tree or sign. When the car ahead of you is about to pass that landmark, start counting. If the car passes the landmark before you reach three, you need to slow down. You are following too closely. Reducing your speed will allow you enough space to slow down or stop quickly to avoid a hazard.

Use Your Full Attention When Driving

Operating a vehicle, of any kind, requires your full attention. If you need to read a map, eat, check on kids in the back or make a call, pull over when it’s safe.

Be Alert

Driving impaired or stoned can severely diminish your reaction time and your ability to notice hazards on the road. The same is true for driving tired. Avoid drugs and alcohol when driving and get enough rest.

In light of these recent reports, please drive carefully to protect you and your family. If you have been involved in a car accident in Ontario, you likely qualify for accident benefits to help you as you recover. If you have been involved in a car accident and have question about how to deal with insurance claims and benefits, please contact for a free consultation.


What is the Strengthening Motor Vehicle Safety for Canadians Act ?

Strengthening Motor Vehicle Safety for Canadians Act

The Ministry of Transportation has been given new safety powers to protect Canadians from vehicle defects. Early this month, the Strengthening Motor Vehicle Safety for Canadians Act was enacted to provide the Federal Transport Minister the power to order car companies to recall a vehicle to correct a defect, conduct tests and fix a new vehicle before it is sold. “Canadians may be surprised to know that prior [to the Act] only a manufacturer could issue a vehicle safety recall in Canada,” said Transport Minister Marc Garneau. “This legislation allows the government to proactively issue safety recalls in the interest of Canadians.”

What does the Strengthening Motor Vehicle Safety for Canadians Act do ?

In addition to imposing a recall, the Act gives Transport Canada the ability to perform more in-depth vehicle inspections for safety concerns and allows more flexibility to support new technologies like self-driving cars.

The Ministry has also been given the authority to impose fines of up to $200,000 to manufacturers for any violation of the Motor Vehicle Safety Act.

This is welcome news for the safety of Canadian drivers, especially in light of recent wide-reaching recalls that were issued for Takata airbags and, in 2016, Volkswagen emissions systems. In those cases, the existing regulator framework created a lag in respond to these safety risks.

Will the Strengthening Motor Vehicle Safety for Canadians Act make the government more accountable?

As Canada has slipped from number two in the world for auto assembly to number 10, we have become more and more dependent on foreign vehicles coming into the country. The Strengthening Motor Vehicle Safety for Canadians Act will give the government and the Ministry of Transportation more accountability to make decision and protect the safety of Canadian drivers and their families.

According to CBC News, one in every six cars on the road has a defect that has been the subject of a recall. Under the old law, vehicle owners relied on the manufacturer of to notify them of a recall.

Where there was an accident involving a vehicle with an open recall, the manufacturers of the vehicle can be held responsible. Unfortunately, ignoring a recall notice and continuing to drive a defective car could affect your ability to hold the manufacturer responsible. You can check if your car is the subject of an open recall through the Transport Canada website. Simply type in the make, model and year of your car to see any open recalls and the reasons for them.

If you have been injured in an accident involving a car that was recalled, you might be entitled to compensation for your injuries. Call us today for a free consultation on your case. We can help you review the facts and circumstances of your accident to determine if the car maker or others might be liable for causing you to be injured.


Want the best auto insurance? Let’s look at Ontario’s Fair Auto Insurance Plan.

Ontario’s Fair Auto Insurance Plan aims to provide the best auto insurance plan. 

We all want the best auto insurance. Ontario is taking action to make auto insurance more affordable for the province’s almost 10 million drivers. 

Since 2013, in an attempt to provide the best auto insurance, the government has introduced a number of reforms that have resulted in lower auto insurance rates. These include a mandatory discount for drivers 

who use winter tires, helping people resolve disputes about benefits faster and clarifying towing and storage costs after an accident. With these measures in place, the average auto insurance rates are now 6.6 per cent lower than they were in 2013, but still not the best auto insurance. 

The government understands that rates are still too high for many people and in order to provide the best auto insurance, we are now moving forward with a package of significant reforms to the system. 

The Fair Auto Insurance Plan is based on recommendations made by David Marshall, Ontario’s advisor on auto insurance. In a report released in April 2017, he urged transformative changes aimed at improving the care received by people hurt in collisions, reducing disputes around diagnosis and treatment — and promoting innovation, competition, as well as, other steps to improve consumer protection.  

Following consultations on Mr. Marshall’s proposals, Ontario is now implementing the following initiatives: 

Standard Treatment Plans 

Making sure people with the most common collision injuries receive the best auto insurance that is timely, appropriate, and effective treatment by developing and implementing standard treatment plans that focus on recovery, monitoring health outcomes and increasing awareness of the best treatment practices, including an increased emphasis on making sure victims receive the care they need. The first of these standard treatment plans will be developed by spring 2018. This is expected to reduce costs in the system by changing the emphasis from cash payouts.  

Independent Examination Centres 

Creating independent examination centres to provide assessments of serious auto collision injuries.  This will help to resolve and reduce diagnosis disputes,  to reduce system costs and to curb the inefficiencies stemming from those disputes. Included in this plan will be the development of standards for assessors to ensure that the opinions of neutral assessments are respected.  This will go a long way in ensuring the best auto insurance plan

Serious Fraud Office (SFO) 

Establishing an integrated and dedicated office, with representatives from the Ontario Provincial Police and the Ministry of the Attorney General, that will support activities to combat auto insurance fraud in  Ontario.  Another great step to help ensure best auto insurance. 

Risk Factor Review 

Drivers pay different premiums based on a number of factors, including where they happen to live. The province has directed the Financial Services Commission of Ontario to review these factors to ensure that people in certain parts of the province are not subject to unfairly high rates. This review is expected to be completed by spring 2018. 

Contingency Fees 

Working with the Law Society of Upper Canada, the province will ensure that people who need the services of lawyers and paralegals are protected and understand the agreements that they are signing.   

To support clients entering into contingency fee agreements, the Law Society of Upper Canada has approved the following changes that will: 

  • Introduce a mandatory standard contingency fee agreement 
  • Create a guide for the public, which contains information on consumer rights in relation to contingency fee agreements. 
  • Require legal professionals to publicly disclose the maximum contingency fee percentage they charge by practice area. 
  • Require lawyers and paralegals to report annually on their contingency fee practices. 

Establishing a Strong, Independent Regulator 

Modernizing the auto insurance rate approval process, reducing red tape and strengthening consumer protection through amendments to the Insurance Act will  provide the Financial Services Regulatory Authority of Ontario with rule-making authority, thus enabling it to promptly and effectively respond to insurance market trends, facilitating industry innovation to benefit consumers. 


Accident in the US ? Do you need more auto insurance?

Accident in the US

The last thing you need is an accident in the US. March break is just around the corner and for those who are lucky enough to have a spring time getaway planned, this means you may be embarking on a family road trip or possibly flying to your southern destination. Whether driving in your own vehicle or picking up a rental at your destination, unfamiliar roads and a vehicle full of distractions can sometime be a hazard and vacations can be interrupted by accidents. 

Dealing with collisions at home is never an easy task, but navigating the aftermath of an accident across the border can be overwhelming.   Should you be involved in an accident in the US , you likely will have many questions about your insurance coverage. Fortunately, in most cases your Canadian insurance will cover you while you are driving in the United States, as long as the trip is only for a vacation and not a permanent move.  Take some time to review your insurance policy before you head out and make sure that you are covered. 

Rental car accident in the US

When renting a vehicle at your destination, your Canadian car insurance often covers the rental vehicle if you are involved in an accident in the US , but this coverage can vary depending on the specific car insurance policy.  Some car insurance policies do not have the same range of coverage for an accident in the US  that is available in Canada. Again, it is best to contact your insurance provider and confirm what coverage you have prior to renting. 

 At the rental counter, the agent will offer you an insurance package, should be in an accident in the US .  Make sure that you take time to read the fine print.  Be sure of the that you  understand the type of insurance that you are purchasing.  Each rental company offers different rental contracts and circumstances where coverage may be denied.  Ask for help from the desk agent to explain anything that is not perfectly clear to you to avoid complications and out of pocket expenses in the event of an accident in the US.  

 Many credit card companies offer some form of rental car coverage.  Again, it is best to fully understand what is offered by reading the benefits overview that came with the card.  You can often find this online or by calling the toll-free number on the back of the card.  Note that these credit cards often require that you pay for the rental car with the credit card itself. Your credit card company may actually provide other forms of travel insurance that you may have never expected; for example, insurance for the theft of personal items while on vacation outside of Canada. 

In the unfortunate event that you are involved in an accident in the United States while driving your own car or while driving a rental car, you should be aware that are some major differences between the between the Canadian and American insurance systems, the latter in which minimums can leave drivers under insured and paying out of pocket for expenses.   In this case, Canadians may be entitled to start a claim against their own insurance company for underinsured benefits (i.e. OPCF 44R coverage).  

Accident outside of Canada

If you have been involved in an accident outside of Canada in your own vehicle or in a rental car, reach out to a Personal Injury Lawyer who can help you to pursue the underinsured benefits and navigate the legal system both at home and across the border.   

 


Changes to ODSP will impact personal injury cases.

ODSP -What you need to know..

 

Recent changes to the Ontario Disability Support Program (ODSP) will have a huge impact for those who receive these benefits and are involved in personal injury cases.

 

As of August 1, 2017, awards for pain and suffering are fully exempt from personal injury settlements and are no longer considered as income or an asset when calculated for this purpose. This is a significant change from the previous ODSP limit of up to $100,000 and alleviates the need to seek ODSP approval on amounts greater than $100,000.

These compensation exemptions apply to:

 

· Awards for pain and suffering, usually ordered through a court, as a result of a loss or injury to or the death of a family member. For example, this could include an individual or their family member being compensated for facing loss or injury from a car accident or from medical malpractice.

· Awards for expenses from an injury to or death of a family member (typically in an accident).

· Awards for loss of care, guidance and companionship due to an injury to or the death of a family member.

· Awards for non-economic loss under certain sections of the Workplace Safety and Insurance Act and the Workers’ Compensation Act.

Also exempt are amounts for pre-judgment interest (unless it is interest on income) and awards for medical and rehabilitation benefits under SABS and awards under the Family Law Act are also exempt.

It should be understood that these awards will not affect a person’s ODSP eligibility. This means that someone who receives a large

 

 settlement can still stay on ODSP.

ODSP settlements

And, while ODSP will not revisit past awards, those that were not processed prior to August 1, can still take adv

 

antage of t

 

 

he new rules. Individuals who received a settlement award of over $100,000 in the past and have since come off ODSP, can reapply if they still qualify and their settlement will be exempt.

With this change, award recipients are free to use their money any way that they see fit. Where, previously, medical and rehabilitation funds would need to be allocated to disability related items and services, individuals can now use the money as they like as long as they adhere to the rules on spending for non-exempt assets.

The new changes do not apply to any settlement for Income Replacement Benefits, Non-Earner Benefits, and Past or Future Loss of Income. These benefits will still be used to calculate income and/or assets for ODSP purposes. It also does not apply to awards for loss of income. The individual will need to claim that amount as income.

If you have questions about ODSP rules and claims for personal injury, you can always call for a free consultation at: (613) 978-954


No insurance ? You may still have options…

Canadian Pension Plan Disability Benefits Exempt from Excess Insurance Payments

A win for accident victims and no insurance claims

Accidents happen and sometimes there is no insurance.  A recent court decision of the Supreme Court of Canada is considered a win for accident victims across Canada. The decision, reached in a Nova Scotia case, ruled that an insurer could not deduct a man’s Canada Pension Plan Benefits from his excess insurance payments according to the Family Protection Endorsement

Essentially, this decision allows accident victims to get the benefits they deserve without threat of deductions from the insurance company.

What happens when there is no insurance ?

In Ontario, when a driver is involved in an auto accident and the other driver does not have insurance, the Family Protection Endorsement can provide the victim with additional benefits through a fund called the Motor Vehicle Accident Claims Fund to make up for the lack of insurance available from the other driver.

The problem is that the endorsement allows insurance companies to deduct, from their coverage, any future benefits that they victim would receive from their disability.  This could include other insurance policies or benefits provided by the Canadian Pension Plan.

With this decision, anyone involved in an auto accident with an uninsured driver can not only collect the Family Protection Endorsement benefit (if eligible), but can also be assured that any future benefits or insurance coming to them would never reduce the amount of that benefit.

This decision is significant in the wake of last June’s accident benefits reform announcement that reduced attendant care and medical and rehabilitation services coverage. To learn the details of this case, refer to Sabean v. Portage La Prairie Mutual Insurance Co.

Our Ottawa injury lawyers encourage everyone to purchase as much auto insurance as they can. It’s always best to cover yourself as much as possible. We hope you never need this insurance but if you do, you won’t ever regret making that purchase. However, if insurance is not available , there are other options. 

 


What you need to know about a hit and run accident .

Hit and run accident

What happens in a hit and run accident when one of the drivers involved leaves the scene? How do the police determine who is at fault and where do the injured turn for compensation?

Under normal circumstances when a hit and run  accident happens, it does not matter who is at fault. If you were driving a car with insurance coverage, you would first contact your own insurance company. If you were injured as a passenger in another vehicle, you would contact the insurer of that vehicle as set out under the Statutory Accident Benefits Schedule (SABS). Under SABS, there should always be an insurer that the injured could contact to make a claim.

Insurance for hit and run accident 

What if you were injured as a cyclist or a pedestrian and were not insured when the driver failed to remain at the scene of the accident? Where would you turn for coverage?

The Motor Vehicle Accident Claims Fund (MVACF) provides compensation to people injured in automobile accidents when there is no insurance. It provides compensations for personal injury or damage to victims of an unidentified driver (hit and run) or a stolen vehicle. This fund is only for accidents that happen in Ontario and can only be used by people who live in Ontario.

As for the driver who failed to remain at the scene of the accident, the law requires that drivers directly or indirectly involved in an accident must

* remain at the scene of the accident

* help as much as possible

* provide their name, address, driver’s licence number and insurance information as well as the name and address of the registered owner of the vehicle to the police and other people involved in the accident.

Drivers who fail to remain at the scene can be fined between $400 and $2,000 and or up to six months in jail as well as a minimum licence suspension of no less than three months and six demerit points.

 

For more information about the MVACF or to talk to an Ottawa injury lawyer about your accident, please call us today at (613) 237-4922 ext. 203 Toll Free 1-855-553-HURT