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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.
Many employers provide group benefits packages to their employees, including long-term disability (LTD) benefits. In addition, some employers also have an additional LTD policy to cover workplace injuries and illnesses caused at/by the workplace, called an occupational long-term disability policy. Some Ontario industries (eg. construction) are required by law to participate in a provincial workers’ compensation plan, such as WSIB. Some other companies have an occupational long-term policy in place to cover workplace illnesses and injuries that would be covered under the provincial workers’ compensation plan, if they had one. Mental and physical illnesses and injuries that are specifically related to the workplace are covered by occupational policies.
There are many differences between a group LTD policy and an occupational policy. For example, the definition of disability under an occupational policy differs from a group LTD policy. Under an occupational policy, the reason you must be unable to work due to an illness or injury arising out of and because of your employment. Under some occupational policies, you must be unable to do any occupation within the company you work for, that you are or may be qualified for that would be at a minimum of the same pay-rate as your pre-disability income. With group LTD policies, however, you may be unable to work due to an illness or injury sustained outside of the workplace.
To be eligible for benefits under a group policy, you are required to provide evidence that you became totally disabled due to an occupational illness or injury while covered under the group policy, You must show that your disability continued past the waiting period stated in the group policy and you have sought appropriate treatment.
The payout under an occupational policy is generally a higher percentage of your monthly income than through a group policy. To be eligible for benefits under this policy, you must prove that you became totally disabled due to an occupational illness while covered under the group policy. As with a group policy, you have to show that your disability continued past the waiting period and you are seeking appropriate treatment.
Although the two types of policies have differences, they also share some similarities. Both types of policies require that you be an active employee when your disability started. You must meet specific criteria as stated in both types of policies in order to qualify for disability benefits. As well, both policies usually have two different definitions of disability involving your ability to continue working in your own occupation or in any occupation, even if you were to be provided education or training in another occupation. With both types of policies, other types of benefits – such as Canada Pension Plan Disability Benefits – can be used to reduce your LTD benefit amounts. LTD policies have a waiting period before benefits are paid out, and benefits can end for a variety of reasons, such as you aren’t following the recommended treatments, if you return to work and are therefore gainfully employed, or if you turn 65.
If you were injured at work or developed an illness, such as anxiety or depression, and you decide to submit a claim, you will need to show when the illness/injury began or happened and how it relates to your workplace. It is best to include as much detail as possible, and attach an incident report (if there is one) and any other written evidence, doctor’s notes or reports regarding your illness or injury and treatments, prognosis and progression. The more information you provide, the better able your insurer will be able to assess what benefits you are entitled to.
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 ?
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:
 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.
 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”. […]
 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. […]
 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.
 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.
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.