An Insurance Nightmare

Catastrophically-injured child’s 11-year legal odyssey to determine her rights

By Alan Shanoff ,Toronto Sun

First posted: Saturday, October 20, 2012

A five-year old girl was struck by a car and pushed through a store window on August 5, 2001.

It was a parent’s nightmare. It also turned into an insurance nightmare with the child’s accident benefits not being determined until last month, 11 years after the accident.

This child, called M.M. in the arbitration decision released September 19, was initially found not breathing and turning blue. She was given mouth to mouth resuscitation.

The fire crew found M.M. in severe distress, semi-conscious, with bluish or purple discolouration due to lack of oxygen.

Her initial hospital diagnosis included a pelvic fracture, small bowel perforation, sciatic nerve laceration, lower extremity lacerations and internal bleeding.

She was operated on for over six hours and intubated for 40 days.

She was discharged from the hospital after 90 days and was an inpatient at Toronto’s Bloorview hospital for an additional two months, followed by about six months of out-patient treatment.

There’s little doubt M.M. has required and will require substantial help, including tutorial, vocational and counseling support, to overcome neurocognitive deficits.

But that costs a great deal of money and her $100,000 medical rehabilitation benefits limit at the time (since reduced to $50,000 as of September 2010) isn’t sufficient for her needs.

She requires enhanced benefits, only available if she is categorized as having suffered a catastrophic impairment.

As happens all too often, her insurance company, Guarantee Company of North America, fought her on that issue.

The severity of her initial injuries notwithstanding, the only way M.M. could be classified as having suffered a catastrophic impairment required her to establish that she suffered a significant brain impairment as a result of the accident.

This as measured on an accepted neurological scale within a reasonable time after the accident.

That’s where the insurance games began.

M.M.’s measurement of brain impairment, taken within a reasonable period following the accident, clearly showed she fit the criteria for a catastrophic impairment designation.

But her insurer raised many arguments against that designation: The measurement was transient or isolated, there was no permanent brain injury, the measurement was primarily due to a temporary lack of oxygen or blood circulation.

In doing so, her insurer attempted to add qualifiers to the definition of catastrophic impairment which do not appear in the definition of catastrophic impairment. They were intended to disqualify M.M. from receiving enhanced benefits.

The Financial Services Commission of Ontario arbitrator, Judith Killoran, released her decision in September, ruling in favour of M.M., concluding she indeed sustained a catastrophic impairment as a result of the motor vehicle accident.

Killoran pointed out that many of the insurer’s experts “imported qualifying language” into the definition of catastrophic impairment and “based on that qualifying language, opined that she (M.M.) did not meet … the criteria.” In other words, the insurers’ experts changed the rules of the game so they could conclude the insurer had won the game.

In the 11-year-odyssey to determine her rights, I can only wonder how many adjusters, investigators, doctors, experts and lawyers were employed by the insurer to investigate and dispute M.M.’s claim.

How much money was incurred to fight this little girl’s claim?

There was little doubt she qualified for enhanced catastrophic impairment benefits under the plain wording of the definition of catastrophic impairment yet it seems no expense was spared to dispute the case.

And for what reason? As the arbitrator pointed out “the catastrophic impairment designation of itself does not entitle the insured to any benefits. Benefits are only available for medical, rehabilitation and care expenses that are reasonable and necessary.”

This is another example of how Ontario’s so-called “overly generous” car insurance coverage works in practice.

It’s worthy of investigation by Ontario’s Standing Committee on Finance and Economic Affairs in its review of the car insurance industry.

Or it would be but for Dalton McGuinty’s resignation and prorogation of the legislature. 

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