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Impact of COVID-19 on personal injury claims in Ontario

Wednesday, November 11, 2020 @ 11:12 AM | By Imtiaz Hosein

Imtiaz Hosein %>
Imtiaz Hosein
The COVID-19 pandemic has not only made our justice system inaccessible for many but has placed an exceptional burden on disabled persons with personal injury claims.

Following the onset of the pandemic, the Ontario government suspended most court activities, including all civil lawsuits. Many injured and disabled persons with personal injury claims have had to receive that dreadful phone call from their lawyer informing them that their claim could not be issued because the courts were not accepting filings or that their scheduled trial had been adjourned until further notice.

There are no words to alleviate the stress and anxiety this causes to a disabled person or their families, especially when their injuries prevent them from working and providing for their loved ones.

The suspension of limitation periods from March 16 to Sept. 14 under the Emergency Management and Civil Protection Act has severely exacerbated the already existing backlog in Ontario’s court system.

In most personal injury claims, these types of delays severely prejudice a plaintiff who is often already at a disadvantage because of the significant disparity in resources between themselves and a defendant that is represented by a large insurance company. Typically, a plaintiff suffers a financial disadvantage before a lawsuit even begins through their loss of employment or a limited capacity to continue working, their need for treatment or personal care and other factors.

The delays in our justice system and the added pressures to vulnerable persons make it tactically advantageous for an insurer to deliberately slow down and delay the proceeding to create pressure on a plaintiff to settle on its terms. The threat of an impending trial is generally what helps a disabled person balance the scales to ensure a more just and reasonable settlement.

As a result of COVID-19 and the measures taken, that balance is no longer there, and many plaintiffs will face an additional year or more before trial. Many plaintiffs will be forced into improvident settlements because of their dire financial situation or worsening health condition. 

In an attempt to see the glass as half full, it could be said that the closure of the courts and suspension of limitation periods has provided plaintiff lawyers an opportunity to step back, focus on gathering evidence in support of their clients’ claims, or draft legal submissions that may have been buried under the never-ending to do list.

However, when the rose-coloured glasses are off, reality sinks in. An opportunity to catch up for many plaintiff lawyers has been compromised by the lost labour hours at law firms due to quarantine measures, self-isolation and staffing issues including childcare challenges/working from home, reduced hours, family illness etc. 

The impact of social and physical distancing, and reduced services also disproportionately affect injured claimants.

For example, in personal injury claims arising from a motor vehicle collision, Ontario’s no-fault statutory accident benefits system entitles victims to receive medical and rehabilitation benefits from their own insurer. In most cases, an insurer will attempt to minimize the funding paid towards benefits based on a superficial assessment of the claimant’s medical records. Insurers often deny the injured person’s recommended treatment, claiming to have insufficient medical support for the recommendations.

Before COVID-19, when this happened, a claimant would often gather additional clinical evidence and seek opinions from treating physicians, rehabilitation providers or medical experts. An insurer might also schedule assessments to determine whether the treatment plan is reasonable or necessary.   

Unfortunately, effectively no in-person medical assessments were scheduled or performed for months following the declared state of emergency. Additionally, most in-person treatment and rehabilitation clinics including in-home care providers were unavailable. As a result, claimants were neither able to receive necessary care nor attend the assessments required to overturn an insurer’s denial.

While both assessments and in-person care are now available on a limited basis, there is again a serious backlog among assessors to address treatment denials.

Many of the catastrophically injured individuals end up suffering in silence, or find themselves in and out of doctor’s offices and hospitals, which increases their risks of contracting COVID-19 or worse. It also places a significant strain on our province’s health-care system at the worst possible time.

All claimants whose treatment plans have been denied have the right to dispute their insurer’s denials at the Licence Appeal Tribunal (LAT). However, as is the case with the courts, the emergency measures introduced significant delays at the LAT, with a similarly massive backlog. All in-person hearings and case conferences have been postponed.

While the LAT has introduced the option of proceeding via videoconference or telephone to mitigate the impact, this is not a suitable option for complex hearings and has not been widely adopted. As with plaintiff claimants before the courts, such delays at the LAT prejudices disabled claimants and privileges an insurer in any potential settlement discussions. 

Plaintiff personal injury lawyers and rehabilitation specialists have actively tried to find solutions to these challenges. Despite strong initial resistance from the insurance companies, lawyers and treatment providers have pushed for virtual therapy and counselling sessions and championed a loosening of the regulations regarding funding for family members providing attendant care services and housekeeping that is otherwise unavailable. Some insurers are responding appropriately while others lag behind.

Additionally, the onset of the pandemic has seen the Financial Services Regulatory Authority of Ontario publish new guidance on how insurers should accommodate claimants with flexibility in how communications occur, waiving or relaxing requirements in determining an insured’s entitlement to benefits and funding virtual treatment where reasonable and necessary.

Ontario’s courts have attempted to innovate in the interim to find new ways to accept certain filings and to hear certain matters. We have also had some very interesting judgments and newsworthy discussion about the potential elimination of jury trials.

Unfortunately, as the industry and legal system struggles to adapt, many claimants who are in urgent need of attendant care services, rehabilitation treatment and accessing our legal system remain without the necessary supports or in limbo.

Imtiaz Hosein is a personal injury lawyer at Campisi LLP. He represents seriously injured and disabled clients in both tort and accident benefits claims. Hosein was called to the bar in 2017, and is a member of the Law Society of Ontario and the Ontario Trial Lawyers Association.

Photo credit / AndreyPopov ISTOCKPHOTO.COM

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