Late last year, the Ontario Court of Appeal delivered a decision in Tomec v. Economical Mutual Insurance Company that may benefit certain catastrophically impaired accident victims and the personal injury lawyers that represent them. A December article from Law Times explains the specifics of the case and details how the decision could affect Ontario’s personal injury system.
Sotira Tomec was injured in 2008 when she was struck by a car while walking. Her injuries required hospitalization and surgery, after which she used housekeeping and attendant care benefits available to non-catastrophically impaired injury victims. The benefits were payable for 104 weeks, or two years; when those benefits expired, in 2010, further benefits were denied by the insurer.
Unfortunately, Tomec’s condition continued to decline; by 2015, a doctor concluded that she was catastrophically impaired. Tomec’s team of personal injury lawyers sought further housekeeping and attendant care benefits available to catastrophically impaired accident victims; Economical refused, saying that the time limit for claiming those benefits had passed.
The province’s Licence Appeal Tribunal (LAT), which handles accident benefits disputes, and the Divisional Court sided with the insurer. “The legislature thought it important to provide a reasonable period, after which the insurer’s obligation would be discharged, regardless of whether meritorious claims may be discovered,” their decision read, according to Law Times.
In other words, prior to the Court of Appeal’s decision, claimants whose injury symptoms continued to worsen were put in a lose-lose situation. The hard time limit for claiming catastrophic impairment made it nearly impossible to access necessary benefits.
‘Either wait until a catastrophically impaired diagnosis is confirmed, and be denied because time ran out; or, apply for benefits before time runs out and be denied due to lack of CAT statues,’ the Law Times article explains.
The Court of Appeal’s ruling overturned the decisions by the LAT and Divisional Court. Justice C. William Hourigan wrote that the hard time limit forced Tomec into a “Kafkaesque regulatory regime.”
“A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits,” he continued. Justices Mary Lou Benotto and J. Michael Fairburn agreed.
The decision will ensure that time limits for applying for accident benefits are based on discoverability, not the moment of the accident. This will ensure personal injury lawyers don’t rush to apply for catastrophic accident benefits for clients who haven’t been diagnosed. It may also make Ontario’s personal injury system more efficient and reduce costs all around.
If you or a member of your family has been seriously injured in an accident, contact Neinstein Personal Injury Lawyers to schedule a free, no-obligation consultation today. Our experienced team of accident and injury lawyers can help you understand your legal options and provide guidance as you embark on your road to recovery.