Process would be more equitable if claimants only had to prove necessity of treatment
This article was produced in partnership Thomson Rogers Lawyers
Julius Melnitzer of Canadian Lawyer spoke with Matt Sutton, partner at Thomson Rogers Lawyers to discuss catastrophic injury designations and access to justice
Ontario’s no-fault insurance scheme should do away with the distinction between catastrophic and non-CAT injuries, says Matt Sutton, a personal injury lawyer at Thomson Rogers in Toronto.
“There’s no need for the distinction because it makes the process long, complicated and expensive. It would work much better and more equitably if all claimants simply had to prove the reasonableness and necessity of the treatment course they propose. Failing that, costs should be awarded to plaintiffs who succeed in showing they have achieved the CAT designation, because they can incur as much as $50,000 in legal fees and $50,000 in experts fees to go through a hearing at the Licensing Appeal Tribunal (LAT).”
Under the current system, non-CAT parties can only claim up to $65,000 in medical and attendant expenses, while CAT designees can seek up to $1 million.
“Claimants must first file an application with their insurer for a determination of whether they have been catastrophically injured, which the insurer can approve, deny, or deny pending their own assessment,” Sutton explained.
In the latter instance, the insurer will likely seek opinions from a number of experts.
“There can be long waits before the responses arrive, but in any event, most insurance experts deny the CAT designation,” Sutton said. “The claimant’s only choice then is to proceed to a full hearing that is incredibly costly and time consuming.”
In one ongoing case, it took Sutton’s client, Cynthia Russel, almost a decade, from 2014-23, to get her CAT designation after she was injured in a single-vehicle accident, which left her with no third-party recourse. (Because the accident took place before the legislation was amended in 2016, the CAT designation allowed her a total of $2 million in medical and attendant care benefits, as opposed to the $86,000 then available for non-CAT claimants.)
“We're in a position now where she's finally going to get some services, almost 10 years later,” Sutton said.
Still, he blames no one but the system itself for the delay.
“Frustrating as the timeframe might be, it’s not unreasonable given the requirements of CAT cases. Some CAT criteria require that you wait two years before you apply in any event, so a reasonable timeframe is difficult for any applicant who's relying on a benefit to get through the day. And for us to do the best by our client, we have to spend significant time getting the file ready for hearing. You can't file and be ready in two months: you wouldn't have the right experts, the right documents and support, and the right witnesses ready. All you’d be doing is setting up for failure.”
Unfortunately, getting the CAT designation isn’t the end of it. Getting the benefits that come with the designation can itself be a long, arduous process.
“Every time an insured applies for a benefit – even after they’ve achieved the CAT designation - insurers have opportunities to deny the services claimed,” Sutton says. “And if they do deny, it’s back to the LAT all over again.”
What that can mean are repeated hearings before the LAT.
“Can you imagine claimants having a CAT designation and then looking at the prospect that their treatment plan will be denied?” Sutton asked. “I've got a case where I've gone to a hearing and won on CAT over a year ago, and the insurer has denied treatment since.”
Making matters worse is the LAT’s inability to award costs.
“It becomes an access to justice issue as well,” Sutton said. “Any lawyer who takes on a case like this has to be able to handle the costs associated with bringing it— our firm can do that, but not all firms can.”
And while there are some avenues of recourse for claimants who are continually denied—including filing grievances with the financial regulators—they don’t address the time and cost issues.
“Don't get me wrong, insurance companies aren't always the big bad wolf,” Sutton said. “They can be very reasonable at times. And when they feel for the client and they understand them and they've been educated on the injuries, they’ll settle or fund services. Sometimes they'll concede CAT right off the bat, although that’s very rare; sometimes they'll settle for what they call CAT numbers, even though the client hasn’t achieved the CAT designation; and sometimes they'll settle for what they call CAT risk, which is usually 50 cents on the dollar.”
As Sutton sees it, the solution is to provide up to $1 million in services for everyone involved in an accident in Ontario.
“The upshot is that disputes will focus on what is reasonably needed, rather than creating delays during the years when the need is greatest.”
Matt is a proud personal injury lawyer and partner of Thomson Rogers.
Before joining the firm in 2019, Matt was a partner of a well-respected insurance defence firm and he practiced exclusively in the area of insurance defence litigation for over a decade. He came to realize, however, that he was more interested in helping the people who suffered injuries and that he was working on the wrong side of the fence. Matt changed his practice focus to use his legal skills where he could best help injured people receive the compensation they need to aid in their recovery. He hasn’t looked back.