In December 2013, the government quietly passed regulations that change accident benefit insurance for motor vehicle collision victims. These alterations came into effect on December 17, 2013. Unfortunately, the changes are not to the benefit of those seeking personal care following an injury in a collision.
The modifications to the Statutory Accident Benefits will make it more difficult for an insured person who is injured in an auto accident to make a claim and receive an appropriate amount of benefits. The key area of the regulation that has been altered to create additional restrictions is attendant care benefits payable.
What is Attendant Care?
Attendant care is the support at home required by injured individuals. Often following an accident, the injured person is unable to accomplish some of the tasks of daily living without help or supervision.
Attendant care can be provided by a personal support worker (PSW), a loved one such as a family member, or a combination of the two.
The benefits payable by the insurance company for attendant care partially depends upon the types of care required. Attendant care is categorized in three levels, and each level is compensated differently.
Level 1 attendant care involves helping with dressing/undressing, prosthetics, orthotics, grooming, feeding, mobility, and extra laundering. In Ontario, it is currently compensated at $13.19/hour.
Level 2 attendant care involves basic supervisory care, helping with hygiene, and the coordination of attendant care. In Ontario, it is currently compensated at $10.25/hour.
Level 3 attendant care involves complex healthcare and hygiene functions, such as bowel care, tracheostomy care, ventilator care, rehabilitative exercise assistance, etc. In Ontario, it is currently compensated at $19.35 /hour.
What has Been Changed about Attendant Care Benefits?
The new subsection 19(3) of the regulation limits the amount of attendant care benefits payable to the amount of the economic loss sustained, if the attendant care provider is not acting in the course of his or her ordinary employment.
This means that if the attendant care provider is a friend or a member of the injured person’s family who is missing work in order to assist, the amount payable will be limited to actual economic loss. If, for example, a family member left a job that paid $12/hour at 40 hours/week plus benefits to assist their injured loved one, they would be losing their monthly income of $2,064 plus benefits (based on a calculation of 4.3 weeks in a month).
Previously, if attendant care benefits were required on a 24-hour-basis, the family member would receive the $3,000 monthly attendant care maximum for a non-catastrophic injury claim. The new legislation states that the loved ones providing the care can only be reimbursed the actual economic loss of income, which in this example, is $2,064.
The full $3,000 will only be paid if the family member elects to hire a private PSW to attend to their loved one during the time they are at work (40 hours/week) and commuting (assume 5 hours/week). Professional PSW services are typically priced at $25/hour, which would mean the family would have to pay $1,125/week, or $4,837.50 per month. That is $1,837.50 more each month than the insurance legislation allows for reimbursement. This money would have to come out of the family’s pocket.
Where the Legislation Fails
Because the previous legislation required that the insurer pay out the entire $3,000 monthly benefit, the insurance companies suggested to our government that the family member was receiving some sort of “windfall” and that people were taking advantage of it.
The legislation creates an economic barrier for friends or family who are helping with the recovery of a loved one that requires constant care. It fails to recognize that someone might have to leave their employment for 3, 6, or 12 months (or longer) to care for their loved one.
Furthermore, even if a family member is not trained as a PSW, if they are performing the same duties and leaving their job to do so – why should they be compensated so much less? The care given by loved ones is undervalued by the legislation. The compensation will not cover the actual cost to take care of the injured individual.
Unfortunately, under the new legislation, many families cannot afford for a PSW to come in while they work (as outlined above).
The outcome of the restrictions is that the family member will likely have to leave their job to provide care. They will likely be unable to return to their previous job when their loved one has recovered. The losses are not comprised of only the “actual economic loss” of previous income. They have lost potential opportunities for advancement and had a setback in their career progression. Less tangibly, there are also physical and psychological stresses to providing the constant care that their loved one requires.
The additional $936/month (the difference between the actual economic loss of $2,064 and the previous $3,000 maximum) no longer seems like much of a “windfall”, does it?
The Solution in an Ideal World
If the legalisation were instead altered to provide enough attendant care benefits to cover the full cost to hire a professional PSW while the family member worked, many of these problems would be solved.
Family members could keep their jobs, rather than being forced to rely on insurance benefits. They would continue to provide support during their off-hours, but they would not have to sacrifice their gainful employment.
The family unit would suffer less stress and breakdown resulting from the need for constant care.
A trained PSW taking care of the patient would increase the likelihood of a healthy recovery and decrease the risk of complications.
The PSW would be paid, the family member could remain at their job, and the injured person would likely experience a faster rehabilitation.
The new legislation is unfair, and downright impractical. It has now become even more difficult for people to cope with their loved one’s injuries.
>> Personal injury law can be difficult to navigate without a dedicated, experienced injury lawyer on your side. Contact us for immediate support and a free consultation if you have sustained an injury in a motor vehicle accident, or any other accident, in Ontario.
The First Five Reasons an Insurance Company Will Deny Your Long-Term Disability Claim [Video]
Life Changes: Living with a Loved One Suffering from an Mild Traumatic Brain Injury
Understanding Your Legal Options for Accidental Injuries in Ontario [Video]