On December 17, 2013, the government published Ontario Regulation 347/13, amending the Statutory Accident Benefits Schedule. This Regulation comes into force on February 1, 2014.
The changes will affect attendant care, pre-existing conditions under the Minor Injury Guideline, and the election of benefits. These changes provide additional hurdles for injured plaintiffs seeking to obtain accident benefits.
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 concern of the defendant insurer in that case was that insurers risk facing claims for attendant care based on minimal monetary loss. The Regulation’s new subsection 19(3) addresses this concern. 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. The result of this amendment is that many family members will not be able to afford to care for their injured loved ones and professional providers will be required. Whether this will result in any cost savings to the industry remains to be seen.
Ontario Regulation 347/13 also tightens up the requirements under subsection 18(2) and 38(3)(c)(i)(B) to avoid the Minor Injury Guideline (MIG). 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.
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. Subject to this exception, the new subsection 35(3) clarifies that the election of benefits is final regardless of any change in circumstances.