Personal Injury

Province's changes to auto insurance should go further: McLeish

By Kirsten McMahon, AdvocateDaily.com Managing Editor

Proposed changes to benefits for catastrophically injured patients is good news, but Toronto critical injury lawyer John McLeish tells Law Times he is cautiously hopeful that Premier Doug Ford's new government will return to the older definition of ‘catastrophically impaired.’

Ontario’s new provincial budget released last month calls for a return to the accident benefit limit of $2 million in medical and rehabilitation benefits for those who are catastrophically injured in an accident after it was previously reduced to $1 million in 2016, the legal publication reports.

McLeish, partner with McLeish Orlando LLP, says he supports the restoration of the $2 million in med-rehab benefits for catastrophically impaired individuals but notes it’s unclear whether the province will also return to the previous definition of “catastrophically injured.”

In an interview with AdvocateDaily.com, he says, prior to the changes made in 2016, there was a softer definition.

"For example, a person would be considered catastrophically impaired if they had a Glasgow Coma Scale score of 9 or less. This is gone. When the Liberals cut the benefit in half, they also implemented a very harsh definition of catastrophic impairment," McLeish says.

Lawyers who represent seriously injured individuals are cautiously hopeful that the new government will return to the older definition, he says.

What the government has done so far is great, but the budget didn't go far enough," McLeish notes.

McLeish also tells Law Times this harsher definition has impacted the way personal injury lawyers approach cases, where the injured individual might be found to be catastrophically impaired, but this is by no means a certainty.

"If an insurance company is saying to an injured person, ‘No, you are not catastrophically impaired,’ and there is a reasonable probability that the injured person will be considered catastrophically impaired, the lawyer will have to fight hard to establish the client meets that criteria for catastrophic impairment and hence be eligible for the $1 million in medical and rehabilitation benefits," McLeish says.

"Sometimes it requires a lawyer to spend up to $20,000 of his or her own money on medical and psychological reports to try and prove the person is catastrophically impaired. If the lawyer loses on the issue, the money is not recoverable. Worse, the client is left without any means to obtain needed treatment," he says.

The budget also indicated the government would “work with the Law Society of Ontario to make contingency fee agreements more transparent for injured claimants who choose to hire a lawyer,” Law Times reports.

“Most lawyers representing injured people don’t charge by the hour. They charge a contingency fee — a percentage of the final settlement. And the existing legislation with respect to how lawyers can charge contingency fees today is very flawed and unworkable,” says McLeish. “To the extent that the provincial government, working with the law society, can come up with a standardized contingency fee agreement, that would be very good,” he says.

“The system needs a major overhaul from the carnage caused by the previous Liberal government. Increasing the med-rehab limit is a good first step, but there is a long way to go," McLeish adds.

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