Accident Benefit Reporter Vol. 4 Issue 2
- Rehabilitation for Burn Victims
- Recent Decision Provides Expanded Entitlements for Non-Catastrophic Injuries
- Ontario Neurotrauma Foundation Update - ABI Best Practices
- Coping with Bill 59 Workshop - Eastern Ontario
- Treatment Plan Survey
Rehabilitation for Burn Victims
By Richard Halpern
Partner
Thomson, Rogers
Serious burn cases, by virtue of the impact these injuries can have on many bodily systems and functions, may require health care professionals to come up with creative recommendations to maximize the patient’s reintegration into former lifestyles and vocations. Under Bill 59, the insurer is required to pay for all reasonable and necessary measures that reduce the effects of any disability and assist in the injured person’s reintegration into family, society and employment. As illustrated by the case below, this may allow health care professionals considerable leeway in devising innovative solutions to better serve the rehabilitation needs of burn victims.
In an arbitration decision decided in 1998 (see Zettler v. Pilot Insurance Co., [1998] O.I.C.D.No. 52), the arbitrator considered what the insurer’s obligations were to Mr. Zettler, a farmer who had sustained serious burns, among other injuries, in a motor vehicle accident. While this case was concerned with a claim under Bill 164 (the previous legislation), the findings are equally applicable to the current regime under Bill 59.
Mr. Zettler’s injuries included very serious burns to the left side of his face, resulting in the loss of his left eye. Extensive burns affected his upper body and the top of his head. As expected with serious burns, Mr. Zettler had to endure multiple skin grafts and reconstructive surgery to the damaged tissues. Ultimately, he was left with permanent disability, including an inability to lift heavy objects, restricted movements of his left arm and shoulder, difficulty breathing in dusty locations and a sensitivity to temperature changes affecting his face and neck. These ongoing symptoms were particularly problematic for a relatively young man who was intent on returning to his farming job.
Rather extensive accommodations were recommended to facilitate Mr. Zettler’s return to farming, including: a new pickup truck with added options of automatic transmission, push-button overdrive and bucket seats with a lumbar support; a new tractor equipped with a dust-free enclosed cab, special seats, air conditioning and heat; and, a 16 gauge air nailer to help him resume his hobby in woodworking. Other items were recommended as well.
In determining entitlement under the rehabilitation section of the benefits schedule (then section 40, now section 15) the arbitrator pointed out that in determining whether a measure is "reasonable", cost does not necessarily have a bearing. Much of what was claimed for Mr. Zettler was quite expensive, but had no bearing ultimately on the arbitrator’s findings. Mr. Zettler was allowed the cost of the pickup truck, less the trade in value of the old truck. Likewise, the arbitrator allowed the claim for the new tractor, less the trade in value of the old one. Pilot Insurance was also required to pay for the air nailer.
This case illustrates how broad the obligation of the insurer can be for rehabilitation benefits, particularly for burn victims who inevitably suffer disabilities that affect multiple body functions. A creative approach by health care professionals to identifying means to mitigate the effects of these limitations both at home and at work, whatever the cost, will help to achieve the most effective reintegration of these victims into their pre-accident lifestyles. While cost does not necessarily play a role in determining the reasonableness of a request for payment, under Bill 59 all lawyers and health care professionals must nevertheless be mindful of the fact that there are limits in the amount of money available. Burns are very serious injuries, but may not always be considered catastrophic. If not catastrophic, the medical and rehabilitation benefit has a ceiling of $100,000, an amount that can be quickly exhausted. Moreover, the need for accommodation might be immediate, but the determination of whether the injury is catastrophic may be delayed. As well, these benefits, in non-catastrophic cases are only available for 10 years.
Recent Decision Provides Expanded Entitlements for Non-Catastrophic Injuries
By Leonard Kunka
Partner
Thomson, Rogers
A recent ruling of Justice Belch of the Superior Court of Justice has helped define the term "Health Care Expenses", and whether a victim’s ability to sue for housekeeping and home maintenance expenses are caught by the health care exclusion contained in s.267.5(3) of the Insurance Act.
Justice Belch held that "there is an ambiguity in Bill 59’s dealing with housekeeping and home maintenance expenses beyond the two-year period where the injury is not catastrophic".
Justice Belch considered the definition of "Health Care Expenses" contained in section 224(1) of the Insurance Act, in conjunction with Part V and Part VI of the SABS, and held that "the definition of health care was not intended to include housekeeping and home maintenance expenses".
His Honour concluded that housekeeping and home maintenance expenses are not caught by the health care exclusion in s.267.5(3) of the Insurance Act. Consequently, an injured party, whose injuries are not catastrophic, may claim housekeeping and home maintenance expenses in their tort claim, as a separate head of damages.
It will be important for Plaintiff’s counsel to carefully review other types of expenses which an injured party may incur, to determine if, by virtue of this decision, they may also be claimed in tort.
Ontario Neurotrauma Foundation Update - ABI Best Practices
By Wendy Moore Johns
Partner
Thomson Rogers
The prevention, rehabilitation and treatment of spinal cord and traumatic brain injuries are among the most difficult and costly challenges to Ontario’s health system. The Ontario Neurotrauma Foundation (the “Foundation”) is committed to reducing the incidence, prevalence and impact of neurotrauma injuries.
In May 1998 the Foundation was awarded a grant of $25,000,000, over five years, from the Ontario Ministry of Health. The terms of the grant require the Foundation to match $1 from other sources for each $1 granted by the Ministry of Health.
The Foundation operates to provide funding to injury prevention, rehabilitation and biomedical research projects in Ontario.
One of the many Foundation grant recipients is the Toronto Area Acquired Brain Injury Network (the “Network”). The Network is a group of 17 partners, which includes acute care hospitals, rehabilitation centres and community agencies. The Network undertook the auspicious task of bringing together all publicly funded Toronto service providers for persons living with the effects of an acquired brain injury, to develop a comprehensive model of care for persons with a brain injury.
With its initial Foundation grant, the Network developed a "best practice" model or guidelines for the care of persons with acquired brain injury. Development of the best practice model included the most current and proven effective approaches to treatment and rehabilitation of brain injury survivors. The best practice model includes 11 recommendations for the care and treatment of persons with acquired brain injury. The purpose of the best practice model is to ensure that persons who have sustained a brain injury have the best possible care and treatment, regardless of which facility or agency provides service; therefore resulting in the best possible outcome for each individual.
In the second phase of its work, the Network collected feedback from the service agencies about the best practice model and, through a panel of experts, it selected a number of consistent, valid and reliable outcome measures that will be used throughout the Network’s partners.
Phase III of the best practice model has also received the support of the Foundation. While the initial phases of the project involved yielding information regarding the current practices and recommendations for standardized assessment and outcome measurement, Phase III starts implementing the best practice model in various agencies.
It is anticipated that implementation of the best practice model across service providers will allow for the best possible treatment of persons with acquired brain injury; from initial contact in the hospital emergency room to reintegration support in the community.
Without the support of the Foundation, it would not have been possible for the Network to develop the best practice model or to begin its implementation. For more information, visit the Ontario Neurotrauma Foundation website at www.onf.org or e-mail the Toronto Acquired Brain Injury Network at abi.network@torontorehab.on.ca.
Coping with Bill 59 Workshop - Eastern Ontario
On Tuesday, November 6, 2001 the popular Coping with Bill 59 Workshop will be held at he the Best Western Cobourg Inn in Cobourg Ontario. This one-day workshop is specifically designed to help health care professionals understand and deal with motor vehicle accident insurance legislation more effectively.
All proceeds will be donated to the Head Injury Association of Durham, Four Counties Brain Injury Association and the Brain Injury Association of Quinte District.
Thanks go to those who took the time to complete the Treatment Plan opinion survey, which was included in the last issue of the Accident Benefit Reporter. We have begun the process of tabulating the results, and the findings will be presented at the 3rd Inter-Urban Brain Injury Conference in London, Ontario on Thursday, October 25, 2001. The presentation is entitled "Bill 59 Rehabilitation Funding Model Decisions-Can We Do Better?" Co-presenters will include Dr. John Flannery Chief of Physiatry at St. John’s Rehabilitation Hospital, Frank Martino of Rehabilitation Network Canada Inc. and David MacDonald of Thomson, Rogers.
The results of the survey will also be reported in the December issue of the Accident Benefit Reporter. Thanks again for your support.
The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about “Accident Benefit Reporter”, please contact Thomson, Rogers.
“Accident Benefit Reporter” is a publication of
Thomson, Rogers, Barristers and Solicitors
Suite 3100, 390 Bay Street, Toronto, Ontario M5H 1W2
Tel 416-868-3100 Toll Free 1-888-223-0448 Fax 416-868-3134
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Posted: September 1, 2001
