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Personal Injury

Fewer catastrophically injured people to receive benefits

Changes to the definitions of catastrophic injury in Ontario will make it more difficult for injured people to get some benefits — potentially having a major impact on their recovery and treatment, says Hamilton personal injury lawyer Andrew Spurgeon.

“The insurance industry wants to contain its costs. In advocating for the changes to these definitions, they obviously have a purpose in mind. They clearly wanted to have fewer people qualify,” says Spurgeon, partner with Ross & McBride LLP.

“More people will be left behind who won’t get that compensation.”

Those who are denied benefits may have the option to sue, but that doesn’t help with recovery immediately following the accident that caused the injury, Spurgeon tells AdvocateDaily.com.

“Recovery is variable depending on the supports you get,” he says. “If you have them upfront, perhaps instead of being cast in a wheelchair for the rest of your life, you could live semi-independently, being able to ambulate and walk to the corner store with canes. Maybe you can have a better quality of life.”

Spurgeon says by “backend loading” insurance compensation, or paying out after a lawsuit, the result creates more costs long-term and reduces people’s quality of life while taking away the hope they can recover earlier.

According to CBC News, a former Nova Scotia resident was paralyzed in 2011 when he toppled seven metres over a railing at a restaurant after tripping on his flip-flop. He suffered a traumatic brain and spinal cord injuries, the article says.

The man thought he was covered under his mother’s policy, but the insurance company only agreed to pay $6,183 to cover a 10-week hospital stay, the CBC reports. Even after doctors wrote letters to state he is paralyzed from the waist down, the company has denied his claim for further coverage for rehabilitation and medical treatment.

The insurer replied that he is “able to ambulate with the use of assistive devices,” and so he doesn’t meet the provision of “total and irrecoverable loss of use” as outlined in the insurance policy, the story says.

“If he doesn’t qualify, who does?” the man's lawyer asked the CBC. What’s the point of insurance?

While Nova Scotia falls under a different insurance benefits regime than Ontario, Spurgeon says the story reminds him of some of the struggles faced by Ontarians who find it more difficult to receive catastrophic benefits because of changes made to the Statutory Accident Benefits Schedule in 2016.

Under new “rigorous” definitions in Ontario, it will be more complicated to be categorized as paraplegic, for example, Spurgeon says.

“They’ve introduced a degree of complexity into it. Wherever there’s room for argument, there’s room to say 'no.'”

Spurgeon says the man’s case in the CBC story makes him wonder about the cases some insurance companies choose to dispute.

“Pick your battles,” he says. “Don’t go fighting a guy who is struggling to walk.”

Spurgeon says it’s important to consider some of the indignities faced by someone who has compromised function in the lower half of their body. Often, that means loss of urinary control or bowel function. The need to use a catheter raises the risk of antibiotic-resistant infections, which can be tough to fight.

“You see how vulnerable these people really are, even if they can walk a bit, aided in some fashion, you see how devastating an injury can be,” he says.

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