Grace Tsang, BridgePoint Financial Services | February 10, 2014 | Posted in Commentary
On February 1, 2014, new amendments to the Statutory Accident Benefits Schedule ("SABS") came into force1. These changes are of significant note and affect the Minor Injury Guidelines ("MIG"), attendant care and the election of certain benefits.
The new regulation amends subsections 18(2) and 38(3)(c)(i)(B) such that an injured person can fall outside the MIG only if a health practitioner determines and provides compelling evidence that the injured person had a pre-existing medical condition that was documented by the health practitioner before the accident. Therefore, an injured person cannot claim recovery beyond the MIG if he or she has not seen a health practitioner for the pre-existing condition before the accident.
A new provision was added to subsection 19(3) which provides that if a person provides attendant care to or for an injured party and this person does not normally work as an attendant care provider, then the amount of attendant care benefit will not exceed the amount of economic loss sustained by the provider during this period while, and as a direct result of, providing the attendant care.
This amendment reverses the Court of Appeal's 2013 decision in Henry v. Gore Mutual Insurance Company2, which allowed the "economic loss" requirement under the SABS to be a threshold requirement for paying the attendant care benefit. The consequence of this decision was such that insurers would have to pay for attendant care claims even where there was not much of a monetary loss to the person providing the attendant care.
As a result of the new regulation, if a family member wants to care for an injured relative, does not ordinarily work as an attendant care provider and does not experience any monetary loss as a result of providing care to the injured relative (e.g. takes time off work or quits his or her job), there will be no attendant care benefit paid to that family member.
The final change affects subsection 35(3). Prior to the amendment, an injured person's election to receive the income replacement benefit, non-earner benefit or caregiver benefit was final; the injured person could change the election to receive caregiver benefit only if he or she is determined to have sustained a catastrophic impairment as a result of the accident pursuant to subsection 35(2). With the amendment, the injured party's election to receive income replacement benefits, non-earner benefits or caregiver benefits is final, regardless of any change in circumstances.
These new amendments will challenge injured parties and their families as they seek the best course of rehabilitation for injuries sustained in a motor vehicle accident.
To review the new regulation, please click here.
1O. Reg. 347/13
2 2013 ONCA 480
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