Our car accident injury system is broken and it’s time to fix it
Injured people often ask me why they have to ask for benefits from their own car insurance company when they were not at fault for the accident. My answer as a personal injury lawyer is quite simply that it is the law in Ontario. Most people find it morally offensive that they have to ask their insurance company to pay – and find it even more offensive that the driver who caused the accident can ask their own insurance company for the same accident benefits: “Why should the drunk guy who was looking at his cell-phone and caused horrible injuries and ruined my life get access to the same benefits that I do”? I have to admit to being somewhat surprised that the political parties in Ontario have continued to support this status quo.
I dare say that most people in Ontario don’t like that system and don’t think that it’s right. It just doesn’t fit with our society’s concept of self-responsibility and fairness. Some might say that it also leaves the door somewhat open for fraudsters to wilfully cause or stage accidents to access benefits. While my experience is that the majority of injured people are honest and decent people, there is no denying that there are some bad apples who abuse the system.
Of course, an injured person who was not at fault for the accident has the ability to start a lawsuit for damages above and beyond what’s available from the no-fault accident benefits system. The unfair part is that the injured person has many restrictions on their ability to sue – for example, they cannot sue for the first week off work, they must “give up” 30% of their past wage loss claim, $30,000 is “secretly” deducted from any pain and suffering award under $100,000.01 (this is kept “secret” from the jury – the law actually requires lawyers not to tell the jury and keep it secret from them – no, seriously, that’s really the law!), and they have to prove that they have a permanent and serious impairment or they get $0 for pain and suffering. If the injured person paid into a disability policy for years, then those proceeds are also deducted from the amount that the injured person will receive. It smacks of overkill when an innocent person whose life has been torn apart, having proven that they have a permanent and serious impairment from the accident at law, still has $30,000 of their award vanish into thin air – that doesn’t make sense, and it doesn’t line up with our society’s values.
The government and insurance industry decided that it would be best to have these innocent victims of serious and permanent injury submit their cases to a Court to be decided by 6 members of a jury with no legal or medical training, instead of having their cases submitted to an experienced and knowledgeable board or arbitrator such as the financial services commission. Six members of a jury who would normally be upset about being stuck in court for weeks. The government and the insurance industry decided that these six people would be the most fair decision makers, but that it would be more fair if the fact that the defendant had insurance was kept secret from the jury, that it was kept secret that any award that the jury made would be reduced by $30,000 and that there would be a host of procedural and administrative road-blocks to submitting evidence (sounds like it’s straight out of a John Grisham novel doesn’t it?). There is also a requirement to submit increasingly expensive, detailed and specialized expert reports from a growing field of specialties and severe restrictions on which expert can say what and when. The current wait-time to get to trial in certain parts of Ontario can be years and years. That seemed like the most fair model somehow.
The significant restrictions on a person’s right to sue for personal injury in a car accident in Ontario were historically justified by the insurance industry’s offer of a generous basket of no-fault accident benefits. The idea was that generous benefits would be provided so that most injured people would not need to sue. Benefits included $100,000 towards medical and rehabilitation for most victims for up to 10 years after an accident, 80% of pre-accident wages to a maximum of $400 per week, housekeeping benefits for up to two years, and the ability to choose have the insurer pay your own doctors to write assessment reports, rather than being forced to rely upon insurance funded doctors.
I readily admit that the accident benefits available under previous systems were indeed very generous – probably too generous and open to abuse and that was the problem. The bad apples immediately saw an opportunity to exploit the system and you had some awful segments of society generating massive profits from unsavoury acts at the expense of the rest of society. The government and the insurance industry’s motives certainly appeared to be well intentioned in bringing in this hybrid/split system, but it was a failure. Assessment, medical and rehabilitation costs spiralled upwards and shady elements of society took over many parts of the system. The problems were most pronounced in certain parts of Toronto. Areas such as Whitby, Oshawa, Ajax, Bowmanville and Durham did not appear to be affected in the same way. I have seen statistics that showed the significant increases that insurers were paying out under that model and it’s difficult not to share their anger.
In September 2010, the insurance industry responded to those shady elements of society and limited accident benefit pay-outs to $3,500 for medical and rehabilitation for minor injuries, $50,000 for major non-catastrophic injuries, eliminated housekeeping for those injuries, reduced income replacement benefits to 70%, and eliminated attendant care benefits for minor injuries. They also stopped the practice of funding reports from a person’s own doctors, instead requiring that to be paid out of the now reduced medical and rehabilitation benefit available.
There is no question that this has had some very positive impacts in the industry. However, it has also seriously affected those legitimately injured and innocent victims. I am currently representing a young person with very serious fractures with multiple surgeries and disability, but currently non-catastrophic injuries, who has blown through their $50,000 in medical and rehabilitation paying for nurses, physiotherapy, assistive devices, medications, etc. That person was driving home to see their family doing nothing wrong, when another car swerved into their lane and smashed into them head-on. That person now can’t access the treatment that they need to try to salvage some portion of their life, we are pushing for trial, but the wait-lists are long and the wheels of justice turn slowly. That does not fit with our society’s frame-work of what is right and that cannot be what was ever intended to happen. The only way to describe that is that it’s awful and it’s wrong.
When the government and the insurers turned the vice on the bad apples, some of the very good apples were crushed along with them. The odd thing is that, although the government and insurance companies tightened the no-fault system and dramatically reduced the benefits, they never really evened the balance and loosened the restrictions on innocent injury victims who bring lawsuits to recover their losses above and beyond what was available under the accident benefits system. There were very minor changes. Remember that the old reasoning was that the restrictions on people’s right to sue made sense because of the generous no-fault accident benefits system.
More recently, the insurance industry and the Liberal government have talked about further reducing accident benefits – but this time for catastrophically injured victims. Catastrophically injured people include those with paraplegia, severe brain injuries, loss of limbs, etc. The industry also wanted to completely take away an injured person’s ability to appeal a decision denying them benefits and change the decision maker from a specialized tribunal to a more general one that had less safe-guards and apparently less cost protection.
All of the while, there does not appear to have been any real effort to challenge some of the more costly elements of the system. One immediate question that clients always ask me is why the insurance industry’s fee schedule for therapy providers pays them so much more than OHIP or WSIB pays for treatment and therapy. Why do the insurers offer a premium for treating auto accident victims? – especially when they have reduced the benefits available to the injured victims who have to pay it. I tell my clients that I have no idea, but that is the law.
People ask me why the insurance companies will spend inordinate amounts paying their hired insurance doctors on their own assessments (including insurance clinics that require that you sign confirming that you are not secretly recording the assessment, who then have disputes with injured people about what was said and done) of the injured person when the actual benefit being claimed for isn’t that much to begin with. They ask me why the insurance companies won’t just trust the injured person’s family doctor or a treating hospital doctor. I tell them that is just the way that the insurers do things.
Innocent injured people ask me why the insurance companies from the other side require that they go to see so many of their doctors and why, in court, we are challenged when we try to fully expose the fact that those doctors do most of their work for insurance companies and all of the nasty things that Courts have said about some of those doctors in the past and how the law can justify hiding insurance company involvement in those circumstances. They ask me why the insurance companies would choose those kinds of doctors and why the Court isn’t simply appointing a fair and impartial doctor from a joint list generated by plaintiff and defence lawyers – or better yet, why these cases aren’t just being reviewed and decided by an impartial board or tribunal like FSCO with a right of appeal (an expert panel that could decide these cases quickly and cheaper, even leaving open the possibility of an ongoing investigation by the board). I tell them that I don’t know, but that’s the law.
There is no disputing that Ontario is left with a difficult system for car accident injury victims that has many challenges that require expert and experienced handling to minimize the risks. There is no question that the insurance industry was right and was justified in reacting with furious anger to what was happening under the previous system, but the fall-out for legitimate and innocent injury victims has been serious and it does not fit with our society’s values of fairness and personal responsibility. It’s time for a change that creates a greater sense of fairness and protects the insurers, our society in general and those innocent injury and accident victims whose lives have been shattered through no fault of their own.
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