This insightful paper, newly updated, focuses on the plaintiff’s perspective in handling catastrophic accident benefit claims. It discusses, considers and analyses the tactical considerations to employ when acting for the catastrophically injured.
With the enactment of the Automobile Rate Insurance Stability Act, commonly known as Bill 59, and with the promulgation of O. Reg. 403/96, a two tiered system of benefits was created with profound consequences to injured persons and their families.
This paper will focus on the plaintiffs’ perspective in handling catastrophic accident benefit claims and will discuss, consider and analyse the tactical considerations to employ when acting for the catastrophically injured.
The Statutory Framework
“Catastrophic impairment” is defined in subsection 2(1) of the Statutory Accident Benefits Schedule-Accidents On or After November 1, 1996 as follows:
- paraplegia or quadriplegia,
- amputation or other impairment causing the total and permanent loss of use of both arms,
- amputation or other impairment causing the total and permanent loss of both an arm and a leg,
- total loss of vision in both eyes,
- subject to subsections (2) and (3), any impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment…results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behaviourial disorder Subsection 2(3) provides that, for the purposes of clauses (f) and (g) of the definition of “catastrophic impairment” in subsection (1), and impairment that is sustained by an insured person but is not listed in the American Medical Association's Guides to the Evaluation of Permanent Impairment shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.
The definition of “catastrophic impairment” creates interpretive difficulty because of its utilization of both subjective and objective criteria. Clauses (a) through (d) are objective and there is little interpretive difficulty. The other categories are restrictive and, with respect, unfair. Any amputation of a limb should be considered catastrophic. The loss of one or two legs of one arm is catastrophic and, even with the aid of a prosthetic device, results in a significant, if not total, disruption to an injured person’s life. Yet, the legislature requires not only that there be an amputation, but that it be a double amputation – loss of not only a leg, but both arms or an arm and a leg.
Clauses (e) and (f), which involve subjective criteria, are recipes for uncertainty, confusion and litigation. Surprisingly, with the exception of Unifund Assurance Company v. Michael Fletcher (discussed in detail below), which was not a court decision, but a decision of a private arbitrator, there have been no cases which have interpreted clauses (e), (f) and (g).
For the full article, click to download: Catastrophic Accident Benefit Claims – The Plaintiff’s Perspective