[This Paper was originally presented at the THE 24th ANNUAL JOINT INSURANCE SEMINAR presented by: The Hamilton Law Association and The Ontario Insurance Adjusters’ Association (Hamilton Chapter)]

SABS CHANGES – LEGAL PERSPECTIVE [1]

By Tara Sciara

For months legal professionals, insurance adjusters, treatment providers, and to some extent, knowledgeable consumers have feared the effects of the new changes to automobile insurance legislation in Ontario released by the Ministry of Finance. The changes to both the statutory accident benefits regime and tort litigation arising from motor vehicle collisions were announced following the Ministry’s Five Year Review of Auto Insurance and most became effective September 1, 2010. For insured persons with automobile policy renewals after September 1, 2010, changes to substantive accident benefits entitlement will take place on the date of renewal.

According to the Ontario government, the legislative intent of the changes to the first-party accident benefits system was to simplify the system, reduce extraordinary assessment and administrative expenses, reduce benefit entitlement to non-catastrophic claimants and introduce a new category of claimants who suffer “minor injuries”.

This paper will focus on some of the significant changes to statutory accident benefits coverage arising out of Ontario Regulation 34/10 [2] (hereinafter, the Regulation), how those changes are likely to affect those practicing in this area, and will outline strategies that may be adopted by counsel in order to serve their clients. For ease of reference, a chart outlining the statutory accident benefits changes is annexed to this paper.

Transition Provisions

As a general rule, substantive provisions under the new SABS apply only to motor vehicle accidents occurring after September 1, 2010 (new accidents) and procedural provisions apply to new accidents and accidents occurring prior to September 1, 2010 (old accidents). The transitional provisions are set out in s.68 of the Regulation:

68. (1) Despite any other provision of this Regulation and unless otherwise agreed in writing by the named insured and the insurer, subsection (2) applies to every motor vehicle liability policy that is in effect on September 1, 2010 until the earlier of,

(a) the first expiry date under the motor vehicle liability policy; and

(b) the day on which the motor vehicle liability policy is terminated by the insurer or the insured, if the policy is terminated before the day referred to in clause (a).

(2) The following benefits are deemed to be included in the motor vehicle liability policy and are applicable to an insured person in respect of the motor vehicle liability policy:

1. The optional caregiver, housekeeping and home maintenance benefit referred to in paragraph 2 of subsection 28 (1).

2. The optional medical and rehabilitation benefit referred to in paragraph 3 of subsection 28 (1).

3. The optional attendant care benefit referred to in paragraph 4 of subsection 28 (1).

4. All optional benefits referred to in subsection 27 (1) or section 28 or 29 of the Old Regulation that were purchased and still in effect on September 1, 2010.

The Financial Services Commission of Ontario released a Bulletin highlighting the transition rules pertaining to the New Regulation, which is annexed at Schedule “B”. According to the Bulletin, the following rules apply:

The Old SABS continue to govern the calculation of benefit entitlement amounts for old accidents eg. IRB calculations, coverage limits, availability of caregiver and housekeeping benefits, attendant care benefit hourly rates, definition of “incurred expenses” does not apply

The New SABS will govern most claims processing and most calculation of amounts payable to establish benefit entitlement for all accidents eg. use of new claims forms, who can prepare an OCF-19, who can prepare a Form 1, interest on amounts that become overdue on or after September 1, 2010, fees invoiced on or after September 1, 2010, no re-election between IRB’s, Caregiver and Non-earner benefits, no rebuttal assessments, use of IE exams is discretionary

There are exceptions to the above rules concerning the applicability of the New SABS to claims processing for old accidents eg. Interest on amounts overdue before September 1, 2010 will accrue at old SABS rate, insurer delivery of benefit statements will not apply to old accidents, cost of examinations and assessments for old accidents will not be included in medical/rehabilitation coverage limits, in-home assessments for minor injuries will continue to be permitted for old accidents.

Medical and Rehabilitation Benefits

One of the most significant changes that will affect insured persons who purchase or renew a policy after September 1, 2010 will be the reduction of the medical and rehabilitation limits in non-catastrophic cases from $100,000 to $50,000 [3]. This reduction is even more significant given that “all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefits” are to be included in the $50,000 cap for non-catastrophic cases, but also in the $1,000,000 limits still available in catastrophic cases [4]. Costs associated with insurer examinations under s.44 and assessments conducted to determine the quantum of income replacement benefits will not be included in the medical and rehabilitation capped amount. The reduced medical and rehabilitation amount in non-catastrophic cases averages $5000 per year for the 10 years available under the policy.

The new SABS provide for the purchase of optional benefits which would increase the benefit levels available. However, although options existed for insured persons pre-September 1, 2010 to purchase elevated benefits, past experience has shown that the majority of consumers were either not provided with the option to purchase these elevated benefits from their brokers/agents or declined to do so.

The government has tried to justify the reduction to consumers by indicating that it will provide “more choice”. Insurance companies are advertising that consumers will be able to tailor their policies to suit their individual needs. Critics of the reduction of benefit limits claim that consumers are paying more for less. In other words, to get the coverage an insured person enjoyed under the old SABS his/her premiums would increase.

Further, the choice of added protection is only available to those who have a policy of automobile insurance. Pedestrians, passengers, cyclists and public transit users without their own automobile insurance policies are stuck with the reduced level of benefits. Where is the choice for these injured parties?

Plaintiffs’ counsel may now have to obtain information at initial client meetings about when policies were purchased/renewed, and whether or not the client’s broker/agent provided sufficient explanation of the optional benefits available. A broker/agent who does not explain the implications of failing to purchase optional medical and rehabilitation coverage may be exposed to liability.

Additionally, it may not be a bad idea to send a letter to existing motor vehicle accident clients who may have policies of insurance coming up for renewal or who may have expressed an interest in changing insurers explaining that there have been changes implemented that directly affect the amount of benefits available to them under their auto policies and inviting them to contact your firm to discuss the changes.

Plaintiffs’ counsel will also have to work together with their clients and the rehabilitation community to try to maximize the available benefits. The focus will have to be balancing the need for assessments with the need for services and treatment.

The cost of assessments has been limited to $2000.00 both for those assessments commissioned on behalf of the injured party and those requested by the insurer [5]. The cap applies to fees and expense for conducting any one assessment or examination and for preparing reports in connection with that assessment. Insurers no longer have to pay fees for preparing a future care plan, a life care plan or for any assessment conducted in connection with the preparation of this plan [6]. While, in theory, this may have been meant to keep the costs of assessments down so the insured is not using up the $50,000 limit, in reality, it is effectively reducing the type of assessments that will be funded by the insurer. Historically, neuropsychological examinations and vocational assessments, for instance, cost well over $2000.00 to conduct. Under the new SABS, only $2000.00 of the total cost of these assessments will be funded, assuming they are considered reasonable and necessary. That leaves the insured having to come up with the remainder of the cost for the assessment.

The assessment cap also creates an uneven playing field between insurers and insured persons. While the cap applies to IE assessments, the number of assessments an insurer can conduct is not limited. The insured has a $50,000 limit on treatment and assessments which effectively puts a limit on the number of assessments available to an insured. There is no such limit for the insurer.

The new SABS make the use of an IE exam discretionary on the insurer [7]. However, the insurer now has to provide “medical and any other reasons” why the insurer does not agree to fund the proposed treatment. This may be difficult without the benefit of an IE assessment. Where IE assessments are not requested, the denial letters/OCF 9’s must be scrutinized to ensure proper medical reasons were provided for the denial. Insurers will likely continue to use IE assessments, especially since the ability for an insured to obtain a rebuttal has been eliminated.

If IE’s continue to be utilized by insurers, the result is that an insurer will have a report to support their denial and the insured is effectively left without a means of medically disputing the denial other than the oral evidence of the health practitioner. Should the insured wish to obtain a rebuttal, the insurer does not have to pay for it and it is an expense that will fall on the insured.

So where does this leave the insured? The following are some suggestions to assist with ensuring the insured makes the most out of the $50,000 limits and with dealing with the $2000 assessment cost cap and elimination of rebuttal reports:

Regarding the $50,000 limit for medical and rehabilitation limit, it will be important to work with the treatment providers to ensure that unnecessary treatment is eliminated and the focus is on providing a team approach to treatment, where available.

Attempt to make deferred payment agreements with service providers. This may only work in cases with strong tort claims, as there is a strong chance that the money will be recuperated in the tort claim.

Insurers are now obligated to submit benefit statements including the amount paid to the date of the statement, the additional amount remaining and the amount paid in respect of IE examinations. These have to be delivered at least once a year in CAT cases and at least once every two months in all other cases [8]. It will be important to ensure that these statements are being delivered so that the insured is well aware of the benefits remaining as a plan for future treatment may have to be amended based on the amounts remaining.

Plaintiff’s counsel will have to canvas tort adjusters/counsel for advance payments for treatment. Ultimately, the money will be coming from the tortfeasor’s policy once the $50,000 is exhausted. This may require obtaining a future care cost assessment early on to illustrate exposure on the tort insurer. The argument can be made that where an advance is not granted, the insured does not have the funding to continue with treatment, which may result in deterioration of the insured’s condition and more money being paid out on the tort claim in the long run. If an advance is granted, the insured will have to account for the money and show that it was used for treatment. Counsel should prepare a chart or obtain receipts from the insured person.

Obtain medical legal reports to address both denied benefits (specifically asking the expert to comment on reasonableness and necessity of treatment/assessments) and tort issues. This option allows the assessment cost to be recouped as a disbursement.

 To get around the $2000 assessment limit, treatment providers may consider submitting multiple OCF-18’s totaling $2000 each to cover the full cost of the assessments. For instance, where it would cost $6000 for a neuropsychological examination, the assessor may submit an OCF-18 for the actual examination, for the testing, and then for preparation of the report. Multidisciplinary assessments for determination of CAT or IRB’s can also be broken down such that each assessor submits his/her own OCF-18 for $2000 or less. The problem with submitting an OCF-18 for these types of assessments is that it will significantly reduce the $50,000 medical and rehabilitation limit. It may make more sense to try to fund these assessments by other means, where possible.

Plaintiffs’ counsel can agree to fund the balance of the assessment costs where only $2000 is approved, or where the assessment is not approved but would be helpful. Where the full assessment has been denied, the issue can eventually be mediated and the insured will have the benefit of actually having the report and having actually incurred the expense, thus attracting interest.

In potential CAT cases, plaintiffs’ counsel may want to consider funding the cost of a full CAT assessment. Assuming an OCF-18 for the assessment will be denied, or will only be partially funded (considering the limit of $2000 per assessment), counsel can approach the tort insurer to assist with payment of the assessment. Where and insured is found to be CAT, this will reduce the exposure on the tortfeasor.

For those without a tort claim, the caps and restrictions will definitely have a negative impact. Without another pocket to pick there will be more litigation, from which disbursements will be recovered. However, many individuals relying only on the first party system, will most likely be unrepresented and will be left to their own devices. Plaintiffs’ counsel may want to consider the claims of these individuals as there may be broker negligence if optional insurance was not purchased.

Minor Injury Guideline (MIG)

A significant addition to the SABS is a new category of injury referred to as a “minor injury”. An injured person suffering a “minor injury” will only be entitled to $3,500 in medical and rehabilitation benefits, inclusive of assessment costs [9]. In addition, a person suffering such an injury will not have access to attendant care benefits, which would otherwise be payable to individuals sustaining a non-catastrophic injury [10]. Nor will an insured person suffering a “minor injury” be entitled to an in-home assessment or examination, such as an in-home occupational therapy assessment [11].

To trigger this section of the Regulation, the impairment has to be “predominantly a minor injury”. There is no indication how the word “predominantly” will be defined. However, as worded, the section may apply to those individuals who have a minor injury as well as additional “non-minor injuries”, so long as the minor injury is the predominant injury. Whether or not this is a subjective test is yet to be determined. Will medical proof be required to establish predominance? Who makes the call as to whether the injury is predominant. It may be that the “non-minor injuries” will always be more predominant to the insured.

A minor injury is defined by the Regulation as follows:

“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.

Several of the types of injuries specified as a minor injury are also defined within the Regulation:

“sprain” means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.

“strain” means an injury to one or more muscles, including a partial but not a complete tear.

“subluxation” means a partial but not a complete dislocation of a joint.

“whiplash associated disorder” means a whiplash injury that,

(a) Does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and

(b) Does not exhibit a fracture in or dislocation of the spine.

Based on the above definitions, included within the category of “minor injuries” would be a partial tear to the anterior cruciate ligament (ACL) or a partial rotator cuff tear. These impairments would only be subject to the $3500 cap. Further, the definition indicates that “any clinically associated sequelae” would be treated as a “minor injury”. It is yet to be determined what sequelae will be included. For instance, is chronic pain a “clinically associated sequelae” of a partial rotator cuff tear or whiplash associated disorder? The insured person may have to obtain a report that explains that chronic pain is not a “clinically associated sequelae”.

The Regulation does provide for insured persons who have pre-existing medical conditions. This section could serve as a way to avoid clients falling under the restrictive definition of a minor injury. Section 18(2) states that:

(2) Despite subsection (1), the $3,500 limit in that subsection does not apply to an insured person if his or her 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 from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.

The keys to this section are that the evidence must come from a health practitioner, the evidence must be compelling and the pre-existing condition must prevent achievement of maximal recovery. A health practitioner can include a physician, chiropractor, dentist, occupational therapist, optometrist, psychologist, physiotherapist, registered nurse or a speech language pathologist. However, what will be considered “compelling evidence” will ultimately be determined by arbitrators and the courts. It is likely that the intent and expectation of insurers is that the majority of pre-existing medical conditions will not exclude a person’s impairment from the “minor injury” category. Plaintiffs’ counsel will have to be careful not to rely too heavily on the pre-existing medical condition for the purposes of more access to medical and rehabilitation benefits as this may jeopardize the tort claim.

The Superintendent of Insurance has created a Guideline for dealing with this new category of injury. Guideline No. 02/10, published in June 2010, provides a treatment framework in respect of one or more minor injuries and sets out the goods and services that will be paid for by the insurer without insurer approval if provided to an insured person who has sustained a minor injury.

The treatment framework outlines the type of treatment that should be provided from the initial visit with the health practitioner to discharge and the amounts that will be funded for each phase. The Guideline provides for twelve (12) weeks of treatment in three (3) blocks. The first block includes the first four weeks of treatment beginning immediately after the initial visit and the approved fee for this period is $775.00 for treatment or $200.00 for monitoring, but not both. Block two (2) is the second four weeks of treatment and the insurer will fund $500.00 for this block, or $200.00 for monitoring services. For the final block, the last four weeks of treatment, the insurer will only pay $225.00 for treatment or $200.00 for monitoring.

The Guideline provides for a limited amount of supplementary goods and services in addition to the treatment funding, such as assistive devices and supportive interventions. The maximum amount allotted is $400.00 without approval of the insurer.

If after the above 12 week treatment phase, the insured has not reached maximal medical recovery, the health practitioner can submit an OCF-18 indicating the treatment that is recommended outside the Guideline. The insurer must treat this as any other OCF-18 in terms of response time and ramifications for failure to respond. As an aside, when an OCF-18 is submitted in any circumstance and the insurer fails to give proper notice under s.25(8), he or she not only has to pay for the goods and services outlined in the OCF-18 until proper notice is given, but will be prohibited from taking the position that the insured person has a “minor injury” [12].

Caregiver, Housekeeping and Attendant Care Benefits

Another blow to insured persons is their inability to claim caregiver and housekeeping benefits for non-catastrophic injuries, unless optional benefits were purchased. Under the basic policy, these benefits are now only available for those insured persons suffering a catastrophic impairment. The amount of benefits available remains the same, that is, a maximum of $100.00 per week for housekeeping benefits and a maximum of $250.00 per week for the first person in need of care and $50.00 for each additional person in need of care for caregiver benefits.

As before, Plaintiffs’ counsel can add these expenses to the tort claim as out-of-pocket expenses. Clients will have to be more diligent about getting invoices from service providers or enter into service arrangements with deferred payment plans.  Plaintiffs’ counsel will no longer have to face the argument from tort insurers that they get a credit for the full $10,400 that was available under the SABS even if the insured was not provided the full benefit. Counsel may also no longer be limited to the $100.00 per week for housekeeping claims when seeking market rates in the tort action.

Like the medical and rehabilitation expenses, the attendant care expenses have also been reduced. Where optional benefits have not been purchased, the benefits available have been reduced from $72,000 to $36,000 in non-catastrophic cases [13]. What is interesting to note is that although the benefits are still available for only two years following a collision, the insured can still claim the maximum $3000 per month. If the insured claims the maximum of $3,000 per month, the available benefits will be exhausted after only one (1) year.

There is no real way to get around this, save and except for asking for an advance from the tort insurers. It may be that Plaintiffs’ counsel will have to identify potential catastrophic cases using (f) and (g) earlier and most definitely before the two year mark. The rules are still the same regarding applications for catastrophic impairment that are submitted prior to the two year mark, which is permissible where a physician, or a physician or neuropsychologist in cases of brain impairment, states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment [14]. In these cases the insurer is still obligated to pay the elevated rate of $6,000 until a determination is made [15]. However, as always, clients will have to be prepared to pay back the money if they are not determined to be catastrophic.

Another change related to attendant care benefits is that the attendant care assessments can only be performed by nurses or occupational therapists that have been trained to use the Form [16].

“Incurred Expenses”

Under the old SABS the issue of “incurred expenses” always seemed to be a bone of contention for insurers. Ultimately, family members and friends were entitled to be compensated for their assistance with housekeeping, care giving and/or attendant care. Further, if a benefit was found to be reasonable and necessary, it was “incurred”, even if there was merely a promise to pay and the insured had not actually paid for the service.

Regulation 34/10 has tightened up this definition in such a way that will impact on entitlement to housekeeping, care giving and attendant care benefits for new accidents. The definition will have a specific impact on friends and family members providing services to the injured party.

The new definition is as follows:

3(7)(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person [17].

Injured parties are now going to be required to prove that either the person providing the services was in the business of providing housekeeping, care giving or attendant care services prior to the collision, or sustained an economic loss as a result of having to assist the injured party with housekeeping or caregiving, in the event of a catastrophic impairment, or attendant care in cases of catastrophic or non-catastrophic impairment. It is interesting to note, however, that the requirement that the person providing services be in the course of the employment, occupation or profession he or she would ordinarily have been engaged in but for the accident appears to contradict s.3(7)(c) which states that an aide or attendant for a person includes a family member or friend who acts as a person’s aide or attendant, even if the family member or friend does not possess any special qualifications.

Family members and friends will, in most cases, now have to establish economic loss as a result of providing the care or services. This could have a significant impact on cases where the care provider was unemployed at the time of the accident, residing with the injured party and is the person best suited to provide care to the injured party, for instance, a retired man who provides care for his injured spouse following a collision. The injured spouse may have to rely on a professional service provider who will charge higher rates that may not be funded by the insurer as they are outside the amounts allotted by the SABS.

Many family members or friends can carry out the housekeeping, caregiving or attendant care services while maintaining their pre-accident employment. How do they establish economic losses? Perhaps travel/transportation expenses if they live outside the insured party’s residence, or purchasing supplies to assist with the services, such as cleaning supplies. Those who may have to forego an opportunity to enter the workforce to care for an injured family member or friend may be able to establish an economic loss. The retired individual could argue that he or she lost income as he or she would have earned income from handyman services. The definition does not say “direct” economic loss, so arguably the economic loss could be indirect. How far the courts or arbitrators will take this is yet to be seen.

A reality in motor vehicle cases is that a spouse or family member will provide housekeeping services, caregiving services or attendant care to bring more cash flow into the home, as often the injured party is no longer able to work and his or her income has been reduced. The family relies on this money to keep up with bill payments, etc. Cash flow issues may become more prominent.

Of note is that the need to prove that an expense has been “incurred” does not apply where the insurer delayed or unreasonably withheld the benefit and entitlement is determined later by the Court or Arbitrator. The expense will be deemed to have been incurred in these situations [18]. This section will likely prevent unreasonable denials that result in lengthy dispute, thus extinguishing whatever benefit the provision was intended to provide.

Income Replacement Benefits

Insured persons are still entitled to the maximum rate of $400.00 per week for income replacement benefits (with the option for increased coverage). However, the amount is now calculated based on 70% of the insured person’s gross income in the 52 weeks before the collision, as opposed to 80% of net income. This will simplify the calculation. The Regulation defines “gross employment income” as:

Salary, wages and other remuneration from employment, including fees and other remuneration for holding office, and any benefits received under the Employment Insurance Act (Canada), but excludes any retiring allowance within the meaning of the Income Tax Act (Canada) and severance pay that may be received [19].

This will not have much impact on the amounts received by insured persons.

However, what will impact insured persons is that they are no longer entitled to make a re-election of benefits as it related to income replacement, non-earner or caregiver benefits. For new accidents, there is no re-election available except in circumstances where caregiver may not have been available until a determination of catastrophic impairment is made. In these cases, a re-election for caregiver can be made [20]. Plaintiffs’ counsel will have to pay close attention to the election to be made and analyze what benefit would best suit the injured party. What should also be considered is whether or not a catastrophic designation may be forthcoming.

Catastrophic Impairment

On a positive note, the definition of catastrophic impairment has been expanded to include single limb amputees [21].

Interest

While interest was previously charged at 2% per month compounded monthly, the Regulation has reduced the interest rate for overdue payments to 1% per month compounded monthly [22]. This new rate will apply to all new accidents, as well as any amounts that become overdue on or after September 1, 2010. For any amounts that became overdue prior to September 1, 2010, the old interest rate still applies.

Conclusion

The government has made it clear that the intent of the new Regulation is to simplify the first party insurance benefits system, reduce excessive administrative and assessment costs and provide the consumer with choice.

While it is likely that there will be a reduced number of assessments and claims given the assessment cost cap and the introduction of the Minor Injury Guideline, there may be an influx of litigation to address issues such as “incurred expenses”, “predominately minor injury” and what will constitute “compelling evidence” with respect to pre-accident impairments as they relate to minor injuries. There will also be increased reliance upon tort insurers, the Ontario health system, ODSP, welfare and private loan companies. There may be increased claims for broker negligence as well.

The limits on medical and rehabilitation expenses and attendant care will have long term implications on the extent of an insured person’s recovery. Plaintiffs’ counsel will have to be diligent in finding the best way to get their clients the most benefit possible from the new system. This will mean being creative, working together with health practitioners and increasing client understanding of the new system.

I would like to thank Oatley Vigmond LLP and McLeish Orlando LLP who prepared a paper entitled Tort and Statutory Accident Benefits Reforms effective September 1, 2010, dated September 3, 2010 which was used in conjunction with a web seminar on the SABS changes put on by the Law Society of Upper Canada. Their paper was referenced in preparation of this paper.

O.Reg. 34/10 (Regulation 34/10) under the Insurance Act, R.S.O. 1990, c.18, was made February 24, 2010, and is effective September 1, 2010.

Section 8

Section 18(5)

Section 25(5)(a)

Section 25(5)(b)

Section 38(8),(10)

Section 50(2)(3)(4)

Section 18(1)

Section 14

Section 25(2)

Section 25(11)

Section 19(3)2

Section 3(5)

Section 45(4)

Section 42(1)(b)

Section 3(7)(e)

Section 3(8)

Section 4(1)

Section 35

Section 3(2)

Section 51(2)

CHART OUTLINING SABS CHANGES

COVERAGE WHAT’S THE SAME WHAT’S NEW AVAILABLE OPTIONS

Income Replacement Benefits

-pays up to $400 per week

-7 day waiting period

-“own occ” test for first 104 weeks, “any occ” test thereafter

-collateral benefits deducted

-optional benefits available

-qualifying eligibility criteria for IRB income

-deemed employed

Worked 26 weeks of previous 52

Was 16 or more or excused from school

Sustained substantial inability to perform the tasks of employment spent most time in

-temporary return to employment does not affect eligibility to reclaim benefits

-calculation no longer based on 80% of net, but 70% of average gross weekly income

-no deduction of EI, CPP or income tax

-no limitation for MIG (old SABS had cap for length of time benefits received under PAF)

-future contract for employment gone (i.e.) no entitlement for person entitled to start work within a year under contract of employment

-insured’s accountant fees re: preparation of report for calculation of income payable to a max of $2,500

-no IRB if non-earner or caregiver elected

-collateral payments under income continuation plan deemed to include:

Periodic payments

Whether or not insurance contract includes waiting period, deductible or similar limitation or is paid for by insured’s employer

-as before, weekly limit can be increased to $600, $800 or $1000 per week

Non Earner Benefits

-26 week waiting period

-pays $185 per week for 104 weeks post impairment

-increases to $320 per week after 104 weeks for students in some cases

-criteria (i.e.) complete inability to carry on a normal life within 104 weeks of accident and does not qualify for IRB OR

was enrolled full time in school,

or completed school within one year prior to accident

-no re-election permitted

-N/A

Caregiver Benefits

-Criteria (i.e.) complete inability to engage in caregiving activities within 104 weeks

-after 104 weeks has to be complete inability to carry on a normal life

-pays reasonable and necessary expenses incurred to pay for caregiver if insured person was residing with person in need of care and was primary unpaid caregiver

-up to $250 per week for first person in need of care and $50 for each additional person in need of care

-not available under standard policy unless insured has suffered catastrophic impairment

-definition of incurred expense applies

-re-election will be permitted if insured deemed catastrophically impaired (i.e.) if previously elected IRB or non-earner because caregiver not available, can re-elect to caregiver if subsequently deemed CAT

-up to $250 per week for first dependent plus $50 per week for each additional dependant in catastrophic and non-catastrophic injury cases

Catastrophic Impairment

-insured may apply for determination

-insurer to respond, approve or assess

-if application received within 104 weeks and insured receiving attendant care benefits, insurer must continue to pay benefits as if person deemed CAT

-if declared CAT, entitled to all prior expenses that would otherwise be covered

-whole body impairment 55% of whole person

-class 4 impairment (marked impairment) or Class 5 (severe impairment) due to mental or behavioural disorder

-GSC less than 9 = CAT

-definition expanded to include single limb amputees

-committee struck to review CAT definition

-application must be completed by a physician or, if a brain impairment, by a neuropsychologist

-insurer has 10 business days to reply to an application (used to be 30 days)

-if submitting prior to two years and intend to rely upon 55% whole body impairment or class 4 or 5 impairments, physician, or physician or neuropsych in case of brain impairment, have to state in writing that impairment unlikely to cease to be catastrophic (used to be that health practitioner could state this)

-N/A

Medical and Rehabilitation Benefits

-what is covered remains substantially the same:

medical

rehabilitation

case manager services for CAT only

attendant care benefits

-$1,000,000 maximum available for CAT injuries

-treatment covered up to the maximum limit or 10 years from accident unless insured was less than 15 years of age at time of accident

-10 business days to respond to treatment plan

-$50,000 maximum limit for non-CAT cases

-Pre-Approved Framework (PAF) removed

-$3,500 limit for Minor Injuries

-cost of assessments included in the $50,000 limits and $3,500 limits for minor injuries (does not apply to IE’s)

-no optional benefits available to increase minor injury limits

-combined OCF-18/OCF-22

-minor injury guideline providing framework for treatment for minor injuries – doesn’t apply if compelling evidence of pre-existing condition that prevents insured from recovering from minor injury within guideline

-new minor injury definition – sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae (includes partial tear)

-no IE’s required for denial of benefits – adjuster now has to provide “medical and any other reasons” for denial (also applies to all other benefits)

-if IE chosen, adjuster has choice between paper review or in person assessment

-case management services are now payable out of med/rehab limits

-no more rebuttals (also applies to all other benefits)

-can purchase an optional benefit of up to $100,000 or up to $1,100,000 for non-CAT cases including assessment costs

-where the $1,100,000 option is purchased, there is no time limit on benefits being paid (otherwise it is still 10 years)

-can purchase an option benefit of up to $2,000,000 for CAT cases including assessment costs

Attendant Care Benefits

-pay for reasonable and necessary expenses

-Form 1 defines monthly attendant care requirements, not to exceed $3,000 for non-CAT and $6,000 for CAT

-payable for 104 weeks unless CAT

-$1,000,000 limit in CAT cases

-non-CAT benefit reduced to a total of $36,000 from $72,000

-Form 1 can only be completed by a registered nurse or OT

-definition of incurred expense applies

-subject to def’n of incurred expense, an aide or attendant for a person includes a family member or friend who does not possess special qualification

-can increase limit to $72,000 or $1,072,000 for non-CAT cases

-can purchase an additional $1,000,000 in CAT cases

Housekeeping and Home Maintenance

-up to a maximum of $100 per week available

-pay for all reasonable and necessary expenses for housekeeping

-not available under standard policy unless insured has suffered catastrophic impairment

-definition of incurred expense applies

-up to $100 per week available for all injuries (CAT and non-CAT)

Cost of Examinations

-pay reasonable fees incurred by an insured person for:

disability certificate or exam

Assessment and treatment plan

OT or RN for Form 1

Application for Catastrophic Determination

Authorized transportation expenses to assessments

-no home assessments for minor injury

-$2,000 cap for fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, including transportation, translations services and mileage (except for accountant report)

-no payment for future care plan, life plan or assessment for this purpose

-no limit to the number of assessments but not more than is reasonably necessary

-arguable that the $2,000 is per discipline not per whole assessment (i.e.) for multidisciplinary assessments

-IE examinations are not taken from $50,000 or optional limits

-assessments requested by insured reduce the medical and rehabilitation limits