The new attendant care provisions reverse the law as established by the Court of Appeal in Henry v. Gore. In that case the Court held that “economic loss” is a threshold requirement for payment of an attendant care benefit. The Court noted that “economic loss” was not a defined term and it declined to provide an explanation. The insurer in that case argued that insurers risk facing claims for attendant care based on minimal monetary loss.
The Regulation’s new subsection 19(3) addresses this concern to the exclusion of any other perspective except the insurance industry’s profit motive.
It clarifies that if an attendant care provider is not acting in the course of his or her ordinary employment, the attendant care benefit payable shall not exceed the amount of the economic loss sustained while, and as a direct result, of providing the attendant care. In the future, care providers will have to either quit their jobs in order to be paid fairly for the care they are providing, or agree to do so for free, or next to nothing. While there is no easy solution to this horrible situation forced on accident victims by this government, consideration should now be given to involving professional caregivers whenever attendant care is required, so as to lessen the burden already faced by the victims and their social support system.
Whether this will result in any cost savings to the industry remains to be seen. It is certain to solidify insurance industry earnings.
O Reg 347/13 also tightens up the requirements under subsection 18(2) and 38(3)(c)(i)(B) dealing with pre-existing medical conditions. Previously, the MIG did not apply if a health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery, if that person is subject to the $3,500 limit under the MIG. The new change requires the pre-existing medical condition to be documented by a health practitioner before the accident. Therefore, insureds who did not have a doctor, or failed to see a doctor for a condition, will not be able to escape the MIG, even if a health practitioner confirms that their condition was pre-existing and will prevent them from achieving maximal recovery. Counsel and medical professionals must carefully review all pre-accident medical records to find any indication of a pre-existing medical condition in order to substantiate a removal from the MIG.
The election of benefits section is also amended. Currently, under s. 35(1) an insured person’s election of income replacement benefits, non-earner benefits or caregiver benefits is final. The exception is if the insured person is designated catastrophic, he or she can re-elect caregiver benefits within 30 days. The new subsection 35(3) clarifies that the election of benefits is final regardless of any change in circumstances.
Neither OTLA, nor any other legal, medical or victim advocacy organization, was consulted before these changes were made. They are completely unfair, illogical, and counter to the entire purpose of having a no-fault benefits system.
The link to the new Regulation is found at: http://www.e-laws.gov.on.ca/html/source/regs/english/2013/elaws_src_regs_r13347_e.htm
Maia Bent is a partner with Lerners LLP, and is Vice President of OTLA.
Adam Wagman is the managing partner at Howie, Sacks & Henry LLP, and is also an OTLA Director.
Source: otlablog.com/insurers-get-an-early-present-injured-victims-get-another-lump-of-coal/
The Ontario government quietly made some important changes to the automobile insurance legislation in the Province. On December 17, 2013, the government released Ontario Regulation 347/13 (the “Regulation”) under the Insurance Act, which implemented three changes to the Statutory Accident Benefits Schedule (“SABS”). Two of the changes significantly limit the rights of motorists who are injured in Ontario.
One of the changes affects the requirements that must be met by an insured claiming that they fall outside of the Minor Injury Guidelines (the “MIG”) and corresponding $3,500.00 limit. Prior to the Regulation, compelling evidence that an insured “has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury” was sufficient. This requirement was set out in subsection 18(2) of the SABS. The new Regulation amends subsection (2) by striking out “a pre-existing medical condition that will prevent” and substituting “a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent” [emphasis added].
Any pre-existing injury on which an insured intends to rely must be documented by a “health practitioner” prior to the accident. While this change will certainly make it more difficult for an insured to be removed from the MIG due to a potential lack of supporting documentation, it also unfairly prejudices those who sought treatment for a pre-existing medical condition from a provider not defined as a “health practitioner” under subsection 3(1) of the SABS (e.g. acupuncturists, massage therapists etc.).
Based on the changes implemented under the Regulation, a treatment provider submitting a Treatment and Assessment Plan (OCF-18) would require documentation from a health practitioner documenting the pre-existing condition, which the health professional believes requires treatment outside of the MIG. In instances where the accident victim is not represented by legal counsel, a greater burden will fall to the health professional to communicate with the accident victim’s pre-accident health care provider(s) and gather the necessary medical records to effectively advocate for the patient.
It is possible that this may deter treatment providers from submitting OCF-18s, who will instead feel compelled to proceed by way of Treatment Confirmation Form (OCF-23) to ensure immediate treatment for the accident victim. This will make it more difficult for an accident victim to later be removed from the MIG when they do meet the statutory requirements.
A second significant change involves the amount payable in satisfaction of attendant care services provided to an insured. Subsection 19(3) of the SABS was amended by adding the following paragraph:
4. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.Prior to this change, an insured was able to receive the full amount claimed on the “Assessment of Attendant Care Needs” (Form 1). In the recent Ontario Court of Appeal decision in Henry v. Gore, 2013 ONCA 480 (CanLII), the Court declined to define the term “economic loss” found in the SABS but permitted payment of the full amount claimed in the Form 1 regardless of the actual amount of the “economic loss” incurred. The Court was of the view that economic loss was a threshold for entitlement but not a factor to be considered in quantifying the benefit.
In Henry v. Gore, the insurer sought to reduce the amount payable under the Form 1 to an amount equal to the value of the number of work hours forgone by the family member who provided the care. The crux of the insurer’s argument was that they would risk facing situations where only a small actual economic loss would require substantially higher payments, in accordance with the Form 1.
The new Regulation clarifies that if a care provider is not acting in the course of his or her regular employment (i.e. a family member) then the amount of the benefit payable shall not exceed the amount of the actual economic loss sustained during the period while, and as a direct result of, providing the attendant care, instead of the amount recommended on the Form 1 by the health practitioner. This is the exact opposite of the disposition of the Court of Appeal in Henry v. Gore and in line with the argument advanced by the insurer in that case.
Consequently, many who would prefer to receive care from a family member may feel compelled to hire a professional service provider, as the compensation for the family member may be insufficient relative to the amount of care provided. This will be difficult for many accident victims and may cause them to forego the recommended attendant care services, which are already frequently reduced when undertaken by professional service providers as SABS’ rates are well below market rates.
A final change made under the Regulation prevents an insured from altering his or her election of income replacement, non-earner or caregiver benefit.
The changes to the SABS under the Regulation will further restrict access to benefits by raising the proverbial walls of the MIG. For those accident victims lucky enough to have access to attendant care benefits, the burden on their family and friends will increase as the financial compensation for their services is reduced. Accident victims will have little choice but to involve professional care providers where attendant care is required.
Comments :
Stan Pavlovsky - Reply January 1, 2014 at 7:01 am
This is a horrible change and is completely contrary to precedent. I guess until lawyers take this through court the insurers will save even more money. This is disgusting. Who in their right mind would allow for changed to the attendant care? This will have a great and very negative impact on those with catastrophic injuries that require 24 hour care. I am speechless.
Source: ghpersonalinjurylaw.com/2013/12/31/new-challenges-accident-victims-families/
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