Insurer is ordered to pay cost of Claimant's Catastrophic Impairment Assessment

In can take time after an accident, sometimes as much as a year or two, before an injured person fully realizes the extent and seriousness of their injuries.  Nevertheless, when you first claim accident benefits against your vehicle insurance policy, your insurer will pay maximum benefits based on your physicians' initial assessment of your injuries (and whether your injury is assessed as minor, non-catastrophic or catastrophic).   If your injuries are later found to be more serious, you may submit your new medical information and apply for a higher level of benefits.  This is what occurred in the following case when a woman found that her injuries likely constitute a catastrophic impairment; however, her insurance company refused to pay for her needed catastrophic injury assessment because she had already used up the maximum allowable benefits for a non-catastrophic injury.

In, J.M. v. Aviva General Insurance (2019), the insurer appealed a previous decision by the Ontario Tribunal where the adjudicator ruled in favour of the claimant and found that Aviva is obligated to pay for the claimant’s catastrophic impairment assessment.

The claimant was injured in a 2015 car accident and subsequently received no-fault accident benefits for a non-catastrophic injury.  After having exhausted the $50,000 in allowable benefits, the claimant made a claim to Aviva for a multi-disciplinary catastrophic impairment assessment, at a cost of $21,513.35, to determine whether her injuries met the threshold of a catastrophic impairment and therefore entitled her to a higher level of maximum benefits.  Aviva dismissed the claimant’s request for the funds to pay for the assessment on the basis that she had already used up her maximum benefits under the Statutory Accident Schedule (SABS).

When the insurance dispute was initially adjudicated on August 1, 2018, the Ontario Tribunal was tasked with deciding whether the cost of the catastrophic impairment assessment is included in the $50,000 limit for medical and rehabilitation benefits.  The Tribunal decided that the insurer is obligated to pay for the assessment in addition to the $50,000 already paid.  Aviva subsequently asked for reconsideration of the adjudicator’s decision.

To understand the key issues in this dispute, we must refer to the coverage limitations set out in SABS, under Ontario’s Insurance Act, that were applicable in 2015, which is the year in which the accident occurred.

There are three levels of no-fault accident benefits available to motor vehicle accident victims in Ontario, and the following maximum benefits were in effect in 2015.  

1. Minor Injury Guidelines:  Minor injuries are defined in SABS and include soft tissue injuries such as sprains, whiplash associated disorder, strains, lacerations and abrasions, as well as dislocation of a joint or organ. A person who sustains a minor injury in a motor vehicle accident was entitled to up to $3500 in accident benefits in 2015. 
2. Non-catastrophic Injuries: Person who sustained a more serious injury (but less severe than a catastrophic injury) were entitled to a maximum of $50,000 in accident benefits in 2015.
3. Catastrophic Impairment:  This most severe level of injury is defined under SABS and includes: the loss of a limb or vision in both eyes; paraplegia and quadriplegia; and other criteria that may entail a multi-disciplinary assessment commonly involving multiple medical experts.  In 2015, the maximum benefit for catastrophic impairment was $1 Million for medical and rehabilitation expenses.

The claimant argued that a catastrophic impairment assessment was necessary and reasonable in his situation; but the Adjudicator’s decision in favour of the claimant was based solely on the legal issues in dispute.  On appeal, the Tribunal upheld the original decision and found that the Arbitrator did not make any errors in interpreting applicable insurance law and case law, when he decided that catastrophic assessments are not included in the $50,000 limit for medical and rehabilitation benefits.    

If your vehicle insurance company has denied you owed accident benefits, talk to an experienced car  accident claim lawyer to find out about your legal right to compensation.  At Injury Lawyers of Ontario, our car accident lawyers well understand the nuances of insurance law and will fight to get you the maximum accident benefits to which you are entitled.