Liberals reduce medical benefits

More heartache for families of catastrophically-injured accident victims as attendant care costs are capped

Toronto Star

Late last year, Ontario’s Liberal government reversed a ruling of the Ontario Court of Appeal and made it harder for auto accident victims to obtain medical-rehabilitation benefits.

This attack on no-fault accident benefits was accomplished through a regulation, a cabinet decree, made Dec. 11 and printed in the Ontario Gazette Jan. 4. The changes came into force Feb. 1.

There was no public debate, consultation or advance warning.

One change impacts the ability of accident victims to access more than $3,500 in medical/rehabilitation benefits.

When the government reduced accident benefits in 2010, it created a category of minor injury claimants who were limited to a maximum of $3,500 in medical/rehabilitation benefits. The actual limit is much lower, however, since the $3,500 includes the cost of medical assessments.

But the minor injury rules were set up with a safety valve. Victims could access up to $50,000 in medical/rehabilitation benefits if their health practitioner established they had a pre-existing medical condition that would prevent them from achieving maximal recovery if they were subject to the $3,500 limit.

But as of Feb. 1, that safety valve has been limited so it applies only to pre-existing medical conditions that had been documented by a health practitioner prior to the accident.

This will reduce the number of people who qualify for more than $3,500 in medical/rehabilitation benefits.

The FAIR Association of Victims for Auto Insurance Reform estimates about 85% of accident victims are only covered for the $3,500 in benefits so it doesn’t appear there was a pressing need for this change.

Certainly there was no need for it to be done without public consultation.

The other change is more insidious as it overruled a July, 2013 decision of the Ontario Court of Appeal involving payments of attendant care benefits to family members of accident victims.

Attendant care covers all aspects of care including dressing, feeding, toileting, bathing, administering medication and so on. Unless optional coverage is purchased the maximum amount payable for attendant care benefits for catastrophically injured victims is $6,000 per month.

Attendant care benefits are only provided if certified as necessary by an occupational therapist or a nurse. Insurers have the right to challenge any attendant care needs that have been certified as necessary.

The Court of Appeal decision involved a young male rendered paraplegic following a car accident. His attendant care needs were assessed and certified at $9,500 per month. The insurer conceded the attendant care needs were reasonable and necessary.

Instead of hiring full-time caregivers, the mother gave up full-time paid employment, where she earned $2,100 per month, to provide care for her son on a 24-hour-per-day basis.

The insurance company took the position it was only responsible to compensate for attendant care benefits up to $2,100 per month, the amount the mother gave up by staying home to look after her son.

The Ontario Court of Appeal disagreed, ruling the law was clear; the insurance company was required to pay $6,000 per month for the attendant care benefits.

That decision has now been over-turned. As of Feb. 1, attendant care benefits are capped by the economic loss sustained by the care provider. Of course, the $6,000 cap won’t be increased if the care provider gives up a salary in excess of $6,000 per month.

This change will mean more heartache for families of catastrophically impaired accident victims.

Having family members provide attendant care is often beneficial for accident victims and it’s difficult to hire caregivers at the low rates allowed in the accident benefits schedule.

According to personal injury lawyer Darcy Merkur, this change “discriminates against persons not currently in the workforce, like retirees, stay-at-home parents, and the unemployed, who are restricted from being compensated for providing needed and valued care to their seriously injured loved one.”

Well, at least we know who has the ear of this government. 



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