Insurers get an early present; injured victims get another lump of coal

On Wednesday, December 11, 2013, the government secretly pushed through three changes to the SABS (Ontario Regulation 347/13), all of which will come into force on February 1, 2014. One of those changes is a small amendment to section 35 of the SABS dealing with the election of weekly benefits. However, the other two changes (attendant care benefits and pre-existing medical conditions) are potentially much more significant and serious.

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
Written by

Maia Bent is the 2015-16 President of OTLA. She obtained a BA from the University of Alberta in 1989 and an LLB from the University of Western Ontario in 1996. Maia was called to the Bar in 1998 and is a partner at Lerners, LLP in London, Ontario, where she practices exclusively in the area of plaintiff personal injury.

In 2012, the Ontario Brain Injury Association recognized her contributions with the Professional of the Year Award. She is a 2014 “Consistently Recommended” Lexpert ranked lawyer and is proud to have been selected by her peers for inclusion in the 2015 Best Lawyers in Canada in the area of Personal Injury Litigation.