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Ontario NDP slams changes to auto insurance attendant care benefits

March 7, 2014   by Canadian Underwriter


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New changes to the standard Ontario auto insurance policy were characterized this week as “mean spirited” by the New Democratic Party’s consumer services critic, though the Insurance Bureau of Canada suggests that one amendment that took effect Feb. 1 did not actually change an auto injury victim’s entitlement to attendant care from professional health support workers.

Ontario Regulation 347/13 makes four changes to the Statutory Accident Benefits Schedule (SABS), also known as Ontario Regulation 34/10.

One of those changes “restricts the amount of attendant benefits that can be claimed by family members who are caring for someone who has been injured in an automobile accident,” said Jagmeet Singh, the NDP critic for consumer services, in the legislature Wednesday.

“To make some further clarifications, this attendant care benefit is only available to the most vulnerable people in our society: those who are catastrophically injured.”

But attendant care benefit is actually available for both catastrophic and non-catastrophic injuries that do not fall under the minor injury guideline (MIG). The maximum attendant care benefit that can be paid under the standard auto policy – to policyholders who do not purchase optional additional benefits – is $3,000 per month, “if the insured person did not sustain a catastrophic impairment as a result of the accident.” The maximum is $6,000 per month if the insured person did sustain a catastrophic impairment.

On Dec. 17, 2013, the ruling minority Liberal government filed Ontario Regulation 347/13, which was published in the Ontario Gazette Jan. 4 and took effect Feb. 1.

The change that Singh referred to clarifies the amount that can be claimed, by an “attendant care provider” who is not providing care “in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident.”

That amount cannot exceed “the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.”

This change, Singh claimed, “means that people who have already left their jobs, who are already caring for their loved ones, would no longer have the protection or the compensation that they would have been entitled to.”

As a result, Singh added, this could result in more disputed claims, which is “quite ironic, because the government has just introduced a bill which seeks to speed up the dispute resolution system but has actually created another complex problem in the system.”

However, the Insurance Bureau of Canada notes that this amendment does not actually change a claimant’s entitlement to attendant care.

“The funds available for attendant care services remain the same should the services be provided by a professional health support worker,” an IBC spokesperson wrote in an e-mail to Canadian Underwriter. “The new reform that came into effect on February 1, 2014 limits a friend or family member who provides attendant care to an injured auto claimant to be compensated for that service to the extent of the economic loss that they incur to provide that care.”

IBC added the new change does not have an impact on “a family member or friend of a claimant who is currently providing care to an injured party” because the changes to SABS applies only for “claims for attendant care submitted on or after February 1, 2014.”

But Singh said March 5 he is calling for the government “to stop going after the most vulnerable people in our society and cancel this mean regulatory change.” Singh represents the riding of Bramalea-Gore-Malton,  northwest of Toronto.

Three other changes to SABS took effect Feb. 1. One of them pertains to an exception, to the $3,500 maximum, that can be claimed by someone who falls into the minor injury guideline (MIG).

Before Feb. 1, Section 18 (2) of the SABS stipulated that the $3,500 maximum for the MIG does not apply if the accident victim’s health care 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 from the minor injury” if the person were subject to the MIG. Now, Section 18 (2) adds a stipulation that the pre-existing condition had to have been “documented by a health practitioner before the accident.”

A third change also pertains to pre-existing conditions, in cases where claimants have injuries that would otherwise fall under the MIG. Section 38 outlines the requirements for treatment and assessment plans.

That section requires that, for accidents that occurred after Sept. 1, 2010, the health care practitioner state that the impairment is either “not a predominantly minor injury,” or that if it is a predominantly minor injury, that the injury does not fall under the MIG because “the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury” if the injured person were to be subject to the limitations of the MIG.

That clause – section 38 (3 (c (i (B)))) – was changed, effective Feb. 1, to add the stipulation that the pre-existing condition “must have been documented by a health practitioner before the accident.”

A fourth change applies to accident victims who could meet the criteria for two – or all three – of income replacement, non-earner or caregiver benefits. In those cases, applicants must elect one of the three.

Prior to Feb. 1, section 35 (3) stipulated that an applicant’s election for one of those benefits was considered to be final and could only be subsequently changed if that change is permitted under section 35 (2), which applies to auto accident victims with catastrophic injuries.

Sub-section (2) requires insurance carriers to notify applicants who are catastrophically impaired that, despite any election previously made, that the applicant “may elect, within 30 days after receiving the notice, to receive a caregiver benefit if the applicant would otherwise qualify for a caregiver benefit.”

As of Feb. 1, section 35 (3) states that the initial election – for income replacement, non-earner or caregiver – is final and can be only be subsequently changed, in accordance with section 35 (2), “regardless of any change in circumstances.”

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