Ontario’s Statutory Accident Benefits Schedule: A Decade of Devolution
by Kenneth Ciupka, November 25, 2020
Over the last 10 years Ontarians have been subject to a gradual decline in the benefits available to them following a motor vehicle accident; many unknowingly. The Statutory Accident Benefits Schedule (“SABS”) is the governing legislation of motor vehicle accident related benefits in Ontario. The current state of the SABS is the consequence of a progressive erosion of benefit availabilities to accident victims from a comparatively robust system. The diminishing benefits available have widened the gaps through which the injured and vulnerable are falling.
The most drastic changes to benefits available under the SABS have impacted medical and rehabilitation benefits, and attendant care benefits. To provide a brief overview, medical benefits seek to provide payment for reasonable and necessary expenses for services including but not limited to, surgical, psychological, optometric, physiotherapy and occupational therapy. Rehabilitation benefits provide payments for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. Rehabilitation services include, but are not limited to, life skills training, counseling, vocational assessments and vocational or academic training. Lastly, attendant care benefits seek to provide payment for expenses incurred for the services provided by an aide attendant in the facilitation of services pertaining to an injured person’s everyday care needs.
The monetary extent to which one is entitled to the above benefits will vary based on the injuries sustained as a result of the accident. The current statutory regime has three categories of injuries: minor injuries, non-catastrophic impairments and catastrophic impairments. Minor injuries and catastrophic impairments are defined in the SABS. Injuries exceeding those described as “minor” but not reaching the level of “catastrophic” will fall within the “non-catastrophic” designation.
“Minor injury” is defined in the SABS as, “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” A comparatively concise definition of “catastrophic impairment” does not exist; however, catastrophic impairments tend to encompass the most serious of injuries, as the name suggests, and includes injuries such as paraplegia, tetraplegia, amputation of the arm and legal blindness, among other impairments or combination of impairments.
Presently, persons whose injuries fall within the “minor injury” designation are entitled to $3,500.00 in medical and rehabilitation benefits over 5 years, with no entitlement to attendant care benefits. “Non-catastrophic” claimants are entitled to a combined $65,000.00 in medical, rehabilitation and attendant care benefits over five years. Lastly, claimants who have sustained a “catastrophic impairment” are entitled to a combined $1,000,000.00 in medical, rehabilitation and attendant care benefits over their lifetime.
Contrasting the pre-2010 statutory regime with the current state of the SABS truly exemplifies the devolution of benefits available to those injured in motor vehicle accidents. During this period there were only two categories of impairments; catastrophic and non-catastrophic. Those falling within the “minor injury” definition of the current regime fell within the “non-catastrophic” designation of the pre-2010 SABS.
Prior to September 1, 2010, non-catastrophically impaired claimants were entitled to $100,000.00 in medical and rehabilitation benefits over a period of ten years. Additionally, they were entitled to up to $72,000.00 in attendant care benefits over two years. When compared to the current SABS, there has been a reduction of $107,000.00 in available benefits to non-catastrophically impaired claimants and a reduction of $168,500.00 for those currently deemed to have only suffered a “minor injury.” Furthermore, the time period for which non-catastrophically impaired claimants can access these benefits has been cut in half – from ten years to five years.
A similar reduction in benefits has also been imposed upon catastrophically impaired claimants. Prior to September 1, 2010 catastrophically impaired claimants were entitled to $1,000,000.000 in medical and rehabilitation benefits over their lifetime. They were also entitled to $1,000,000.00 in attendant care benefits over their lifetime. Given that those experiencing catastrophic impairments are only entitled to $1,000,000.00 in combined medical, rehabilitation and attendant care benefits under the current statutory regime, this represents a reduction of 50% of benefits available to those who have faced the most grave, severe, and as is described by way of the designation, catastrophic impairments.
The medical, rehabilitation and attendant care costs for injured persons will vary greatly. Costs for these services will inevitably fluctuate based on variables like the accident-related injuries, pre-existing health conditions and age, among other things. However, when considering what are arguably the most serious injuries one can sustain, namely paraplegia and tetraplegia for example, studies have indicated that lifetime costs can range from $1.5 million to $3.0 million for injuries occurring at age 35.
The above data represents marked disparity in funds required by catastrophically injured claimants over their lifetime and the actual funds available to them by way of their automobile insurance benefits.
The rationale behind such drastic cuts in motor vehicle related benefits is presumably an effort to reduce automobile insurance rates in Ontario. Despite this, provincial insurance rates have bee reported as consistently increasing year by year. According to a recent CBC article, using data from insurance price aggregator Kanetix and data released by the published by the province, insurance premiums have reached an average of $1,700 per vehicle in 2018; up from an average of $1,458 in 2015.ii Also of note is that, according to a recent study conducted by the Ontario Trial Lawyers Association, insurance companies experienced a 57% increase in pre-tax profits; $1.5 billion in 2016, up $534 million since 2012.
Automobile insurance rates in Ontario seemingly climb in lockstep with insurance company profitability. Left by the wayside are those injured in motor vehicle accidents. There is an appreciable shortfall of benefits available to claimants that can only be mitigated by way of statutory reform. Until such reform is brought to fruition, the treatment of injuries sustained in motor vehicle accidents will continue to be subject to a deficiency in benefits; deficiencies which evoke an exacerbation of symptoms by the system that purportedly seeks to alleviate them.