The more things change The less they are the same. Friday May 22, 2015

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1 The more things change The less they are the same. Friday May 22, 2015

2 2010 Providing more Choice for Ontarians 2015 Fairness for Ontario Consumers

3

4 80% of victims in Ontario limited to $3,500 Other provinces up to $25,000 Ins examinations included in Ontario costs Right to sue for minor injuries in other prov More low dollar claims in other prov brings average cost per claim down

5 balance the needs of injured claimants to recover and resume work and regular activity as quickly as possible, with protecting consumer interest by ensuring affordable insurance for Ontario drivers.

6 Lowering the maximum interest rate charged on monthly premium payments from 3% to 1.3% Prohibiting premium increases for minor atfault accidents no reported injuries Discount for Winter tires

7 Reduce combined medical and attendant care benefits from $86,000 to $65,000 Accident benefits terminated after 5 years Goods and services not explicitly listed in SABs must be essential and agreed by insurer

8 Non earner benefits stopped after 2 years Slash Catastrophic benefits by $1million Update the catastrophic impairment definition

9 Working with the auto insurance industry, the government will ensure that consumers are aware of the changes to the standard auto insurance policy and can make an informed decision should they choose to take advantage of enhanced optional coverages to suit their needs.

10 Income replacement benefits $600; $800; $1,000 ($43) Medical benefits $100,000 ($20) to $1.1 million Attendant Care $72,000 ($2) Housekeeping $100 per week

11 What percentage of Ontario drivers have purchased optional coverage?

12 3%

13 Review the definition of Catastrophic impairment and make recommendations for changes to the definition to ensure that the most seriously injured accident victims are treated appropriately

14 The Panel agreed that all current SABS definitions required significant revisions. The Panel voted to eliminate brain impairment that results in a score of 9 or less on the Glasgow Coma Scale

15 American Spinal Injury Association (ASIA) classification - to assist with the determination of catastrophic impairment subsequent to spinal cord injury Spinal Cord Independence Measure - to assist with the measurement of catastrophic impairment associated with ambulation dysfunction.

16 Extended Glasgow Outcome Scale (GOS-E) - to assist with the determination of catastrophic impairment subsequent to traumatic brain injury in adults Global Assessment of Functioning (GAF) - to assist with the determination of catastrophic impairment subsequent to psychiatric disorders.

17 Paraplegia Tetraplegia Amputation of an arm or leg or another impairment causing loss of arm or leg Loss of vision of both eyes

18 currently participating in, or has completed a period of, in-patient spinal cord injury rehabilitation in a public rehabilitation hospital And >>>

19 permanent ASIA Grade can be determined with reasonable medical certainty Grade is A, B, or C or permanent ASIA Grade is or will be D provided that the insured has a permanent inability to walk independently and/or >>>

20 and/or requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage the residual neuro-urological impairment

21 The five categories of the ASIA impairment scale Category A = Complete B = Incomplete C = Incomplete Description No motor or sensory function (for definitions, see note below) is preserved in the sacral segments S4-S5 Sensory but not motor function is preserved below the neurological level and includes the sacral segments S4-S5 Motor function is preserved below the neurological level, and more than half of key muscles below the neurological level have a muscle grade of less than 3 D = Incomplete Motor function is preserved below the neurological level, and at least half of the key muscles below the neurological level have a muscle grade of 3 or more E = Normal Motor and sensory function are normal.

22 determined in accordance with the following criteria: i. Trans-tibial or higher amputation of one limb, or ii. Severe and permanent alteration of prior structure and function involving one or both lower limbs as a result of which: >>>

23 participating in, or has completed a period of inpatient rehabilitation in a public rehabilitation facility, and permanent inability to walk independently and instead requires at least bilateral ambulatory assistive devices

24 The total loss of vision in both eyes

25 Legal blindness in both eyes due to structural damage to the visual system Visual acuity threshold of 20/200 Non-organic visual loss (hysterical blindness) is excluded

26 brain impairment that results in a score of 9 or less on the Glasgow Coma Scale a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale according to a test administered more than six months after the accident

27 GCS is eliminated Poor tool for predicting long-term outcomes of tbi

28 structured GOS-E assessment: a) Vegetative (VS) after 3 months (may be 1 month) or b) Severe Disability Upper (SD+) or Severe Disability Lower (SD -) after 6 months, or c) >>>

29 c) Moderate Disability Lower (MD-) after one year due to documented brain impairment, provided that the determination has been preceded by a period of inpatient neurological rehabilitation in a recognized rehabilitation center

30 Generally supports the recommendations of the expert panel Has rejected the need for inpatient rehabilitation. Ultimately a political decision

31 Marked impairment ratings eliminated No evidence that ratings are valid or reliable No single assessment tool to measure overall psychiatric impairment

32 Pain will not be quantified as a separate impairment No way to measure pain Psychological and behavioural impairments would be excluded Chronic pain and fibromyalgia would be considered in psychiatric assessment

33 Considering a combination of requirements One or more of: Major Depressive Disorder PTSD Psychotic disorder >>>

34 GAF score of 40 or less Also requires some evidence of: Institutionalization Repeated hospitalizations Appropriate interventions/ Psychopharmacological medications Loss of competence to manage property In-person psychiatric follow up monthly

35 No evidence to support combining in a valid or reliable manner with current tools AMA Guides do not provide ratings for psychological impairments Rating systems for physical and mental/ behavioural impairments not compatible Combining not a simple additive process

36 First published in 1970 and revised periodically AMA Guides 6 th edition (2007) Not well accepted and reliability questioned The expert panel and Superintendent recommended 4 th edition

37 For other physical impairments not listed retain current definition and adopt AMA Guides 6 th edition for quantifying mental and behavioural impairments for the purpose of combining

38 In-patient admission to a Level I Trauma centre with positive findings on CT/MRI indicating intracranial pathology Or In-patient admission to a publicly funded rehab facility for program of brain injury rehab

39 Use of the King s Outcome Scale for Childhood Head Injury (KOSCHI) 1 or 3 months Category of Vegetative 6 months Category of Severe 9 months function remains seriously altered

40 TBI accepted for admission to a program of in-patient neurological rehab at recognized neurological rehab centre. Physical - traumatic physical impairment rating is at least 55% WPI; and determination is made at least three months after the accident date.

41 Interim catastrophic impairment status ceases to exist as soon as a final determination has been made, and in any event no later than two years after onset.

42 Superintendent recommendation: Provide an additional $50,000 (renewable) Overseen by primary treating physician

43 The removal of GCS will drastically reduce early CAT determination of TBI patients Interim CAT impairment status will result in a small number of patients that will meet the new CAT definition Requirement for in-patient rehabilitation restrictive

44 Fewer insured s will qualify as CAT Years of disputes over the definitions Greater level of complexity in the definitions Most definitions rely on subjective testing ASIA scales GOSE Margin of error and room for interpretation will result in two distinct opinions

45 We have many years of experience and jurisprudence dealing with existing definitions Panel ignores that any person deemed CAT still has to prove need for services Recommended treatment/services have to be reasonable and necessary

46 The budget omnibus legislation should be passed sometime at the end of May, 2015 A notice on the changes to CAT recently posted and comments until June 29, 2015 Govt needs to consult with stakeholders and get better info on insurer profits (17% ROE) Lobbying local MPPs, in particular Lib MPPs

47 "accident" means an incident in which the use or operation of an automobile directly causes an impairment If you are involved in an accident then you are entitled to Accident Benefits

48 1) Did the accident result from the ordinary and well-known activities to which automobiles are put? (the "Purpose Test")and

49 2) Is there some nexus or causal relationship between the plaintiff's injuries and the ownership, use or operation of his vehicle? (the "Causation Test").

50 Insured drives car into gas station. Stops vehicle but engine is still running Was intending to purchase gas He was assaulted by 3 or 4 men through window and tried to enter his vehicle Insured reversed out of parking lot and went to police station

51 depression, anxiety, post-traumatic stress disorder, chronic low back pain, migraine headaches, anxiety and nervousness, and other ailments, including physical limitations on his ability to function.

52 Pulling into gas station is an ordinary and well know use

53 The injuries caused to insured directly connected to the use and operation of his vehicle caused by assailants whose purpose was to seize possession and control of his automobile from him. Assault was not random but arose out of his ownership, use and operation of his vehicle

54 Insured was actually CAT impaired while riding home in limo with 11 other golfers Attempted headstand against pole in limo Fractured neck resulting in incomplete tetraplegia

55 Mr. W retired from banking after 35 years and spent a further six years selling real estate. served as a Catholic school board chairman consulted to the board on community use of schools avid golfer and skier. He had organized yearly golf trips for his bank colleagues for 35 years

56 Limos come with various amenities ie. mirrored ceilings, fibre optic mood lighting, laser or strobe lights advertised as a "Party Bus pole was an amenity of the vehicle no evidence that the pole was there for either safety or stability purposes.

57 Mr. W walked normally up to the pole, placed his head on the floor, braced himself with his hands and flipped his legs in the air, caught one foot on the pole, missed it, his arms gave out, his forehead hit the floor and his neck snapped

58 headstand, in the circumstances of this case, was within the ordinary use and operation of limo bus as a "party vehicle company's website advertised the vehicle as a "Party Bus" and stated the company would provide "service and transportation needs to fit the client requests

59 Insurer - argued that headstand was an intervening act, not part of amenities Arbitrator - once the activities around the pole began, they continued in an unbroken chain, the last link being Mr. W's headstand vehicle was in use on a highway, exactly as the vehicle was intended to be used.

60 ATV vehicle not driven on operator s land entitled to benefits

61 Off-road dirt bike driven on private track entitled to benefits

62 Passenger on back of golf cart driven down the highway entitled to benefits

63 Stroke victim found outside his vehicle found to be entitled to benefits. Stress related to driving incident

64 Pocket bike operated on land occupied by bike s owner not entitled to benefits Issue was that it was driven off land at other times

65 Pedestrian running across road and tripped on curb when fire truck coming with siren

66 Accident benefits are being eroded Still an important health safety net for seriously injured people; harder to qualify Shift focus to the tort claim but benefits delayed Consult a personal injury lawyer to review the fact circumstances if you are not sure.

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