On December 11th, the Ontario Government pushed through three changes to the Statutory Accident Benefits Schedule, which will come into force on February 1, 2014. Perhaps the most important change is that the regulation reverses the law as established by the Court of Appeal in Henry v Gore. In that case, the Court held that one only need to establish that there is some economic loss to meet the threshold of entitlement to attendant care. The Regulation changes that. An attendant care provider will not be entitled to the full monthly amount of $3,000 or $6,000 (depending on level of injury, catastrophic vs non-catastrophic and Form 1 calculation). Instead the attendant care provider will only receive a benefit equal to their actual economic loss (up to the $3,000/$6,000 maximum). This is a radical departure from the past. In addition, Attendant Care Providers may be penalized as their pre-existing economic loss may not match the amount of attendant care that they have to provide.
The second change that is of significance relates to S.18(2) and S.38(3). Previously the Minor Injury Guideline (MIG) did not apply if a healthcare practitioner determined and provided compelling evidence that the insured person had a pre-existing medical condition that will prevent the insured person from achieving maximal medical recovery. As you are aware, the MIG limits compensation up to $3,500. The new change requires that the pre-existing condition has to be documented prior to the accident by a healthcare practitioner. Therefore, insureds who did not have a doctor that diagnosed the condition before the accident will not be able to escape the MIG even if the healthcare practitioner subsequently confirms that there was a pre-existing problem that will prevent maximal medical recovery.
The final amendment that was enacted to the Regulations provides changes to the Election of Benefits section. Now, under S.35(1) an insured person’s election of Income Replacement Benefits vs Non-Earner Benefits or Caregiver Benefits is final. The only exception to this is if the insured person is designated catastrophic then he or she can re-elect within 30 days of being declared catastrophic.
It is important to note that this Regulation was passed without any consultation from any interested groups including the Ontario Trial Lawyers Association.