The government set up new and significant barriers to the already vastly reduced accident benefits (AB) system. People may recall that the accident benefit system was set up many years ago as a “generous” source of benefits that justified significant restrictions on a car accident victim’s right to sue (including adding a now $30,000 deductible and a threshold test to qualify for pain and suffering etc.).
The accident benefit system has now been so severely hacked apart and minimized that one wonders how the above noted logic still makes any sense at all. Car accident victims have had their rights under the AB system stripped, but no corresponding increases in their right to sue. As a personal injury and car accident lawyer, I find it very difficult to explain to clients how this is fair. I have spoken with members of the public in Whitby, Ajax, Oshawa and Durham Ontario and very few believe all of the secret protections that are afforded to the insurance companies under the insurance act.
The current changes will affect attendant care, pre-existing conditions under the Minor Injury Guideline, and the election of benefits.
The new attendant care provisions effectively do away with 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 new rules also make the minor injury guideline even stronger (at a time when many in the industry are admitting that the MIG went too far to begin with). Previously, the MIG did not apply if there was compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum recovery, under the MIG. Now, the pre-existing medical condition has to be documented by a health practitioner before the accident. What does that mean for people who didn’t have a doctor, or didn’t see one for the condition before the accident?
Right now, an insured person’s election of income replacement benefits, non-earner benefits or caregiver benefits is final, except 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.
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