Changes To Statutory Accident Benefits
By Steven Kenney – 2016/10/04
When an individual is injured in a car accident, he or she is entitled to apply for Statutory Accident Benefits (SABs) through his or her own auto insurer. There are exceptions and limitations to these benefits. Thus it is extremely important to obtain legal advice as soon as possible.
This article focuses on two changes to the Regulation that governs SABs. These amendments were effective as of February 1, 2014.
Why are these changes significant?
If you have ever been involved or know someone who has been injured in a car accident, then you are also aware of the difficulties faced by victims and their families. It is never just the injured person who is impacted by the trauma. The stress of the medical circumstances is the first part of the crisis. The next hurdle involves legal and insurance questions.
One aspect of being injured is attendant care. Is the injured person medically able to be independent? Do they need assistance to prepare meals, complete personal hygiene, administer medication, change dressings or be mobile?
Our society’s foundation is based upon helping others. This moral guideline is more prevalent during the time of crisis and trauma.
Families and friends come together to support, and assist the injured person. In some instances, it is reflected by driving the individual to appointments, making meals or cleaning the house or helping with personal hygiene. These unprofessional aides are providing attendant care.
The aides do not ask for compensation, but provide assistance willingly. Perhaps it is the familial connection or returning a favour. Whatever the reason, the majority of family and friends will give their time and energy in order to meet the needs of the injured.
How long assistance is needed is largely dependent on the degree of injury. Those victims who are “catastrophic” (for example: paralyzed or brain injured) often receive professional care simply because of the type of medical care required. But not all victims are “catastrophic”. A badly fractured limb, torn muscles/tendons or severe neck injury, generally not determined to be catastrophic, will still need some form of “attendant care”.
Generally, the injured person does not want to impose, or take advantage of family and friends. However, there is comfort in having a family member or close friend nearby, giving encouraging words, and simply being there.
Payment of attendant care benefits to family members and friends has changed over the years. The reason for the changes may relate to the number of fraudulent claims, audit difficulties, or the fact that the benefit is too expensive to cover. Whatever the reason, on February 1, 2014, there was another change.
Previously, the payment of attendant care benefits related to economic loss or the payment of a service, whether to a professional or a family member or friend. The Ontario Court of Appeal (Henry v. Gore) reviewed the terminology and indicated “economic loss” was not a defined term. In other words, the Regulation pertaining to attendant care was not clear.
The amendment now states that if an attendant care provider is not acting in the ordinary course of employment, the benefit payable shall not exceed the amount of economic loss sustained.
What the change means may still require Court interpretation. Until that occurs, in all likelihood, family members and friends who provide attendant care will be giving of their time and energy freely or for a minimal amount.
The impact will vary depending on the degree of injury, need and time involved. Many family members and friends will continue to provide assistance as that is often the nature of those individuals. However, at some point, the stress of being an unprofessional caregiver will become unbearable and create its own victims.
Another aspect of injury is the Minor Injury Guidelines (MIG).
The purpose of the MIG was to provide payment of benefits to a maximum of $3,500, for minor injuries. The insurance industry wanted to remove some of the frustration associated with payment of benefits to make life a little easier for those individuals who sustained minor injuries and to achieve maximum recovery in a short time frame.
Sometimes the body does not recover quickly for many reasons. Pre-existing medical conditions have been cited by physicians as one major factor. For example, the victim may have osteoarthritis, migraines or old injuries.
Previously, an injured party/insured had the opportunity of being removed from the MIG when a physician provided an opinion supporting a pre-existing condition. In other words, the individual would not achieve maximum recovery because of the other medical condition.
The amendment will now require that the pre-existing condition must be in the physician’s clinical records prior to the accident. If there isn’t a clinical record somewhere of this pre-existing condition, then the insurance company will not likely accept it.
Many individuals do not have family physicians, or have not sought medical investigation for suspected health issues or never realized that a prior injury has led to a medical condition. Similarly, physicians do not have detailed notes of every discussion with patients, nor do they have clinical records from retired physicians.
Therefore, some individuals, who are diagnosed after a car accident with a medical condition that existed pre-car accident, will likely have difficulty arguing that the MIG ought not to apply to their situation.
First and foremost, it is important to obtain legal advice. Secondly, consider hiring a professional caregiver. Thirdly, inform your physician or treating medical professional of all health conditions.
* * This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.
Steven Kenney is a lawyer at SorbaraLaw, currently practising primarily in the areas of medical malpractice and personal injury, though he maintains an interest in corporate and commercial matters as well as employment law.