Picture this…

A typical middle-class family books a cottage in Blue Mountain Labour Day weekend. On their way back, they get broadsided at an intersection by an RV. The mother seated up front ruptures her spleen, shatters her right wrist and two ribs. The toll: 8 weeks for surgical recovery, plus no ‘strenuous activity’ for 6 months; 6 weeks with a cast, plus up to 6 months of physiotherapy, and 2 months for her ribs to heal enough so breathing isn’t torture. Since her father is self-employed and they can’t afford homecare, the eldest daughter postpones college this term and quits her part-time job in order to care for her mother and their household until she’s better. In return, her mother seeks attendant care benefits from her uncooperative insurer. She hires a tough personal injury firm and sues for attendant care, caregiving and housekeeping benefits [special damages].

The first part of the Gordian knot our victim must untie is definitions. According to the 2010 Statutory Accident Benefits Schedule [SABS] and its s. 3(1) Minor Injuries Guideline [MIG], there are three classes of injury: minor, non-catastrophic and catastrophic. In this case, the injuries are “non-catastrophic”, because they’re not covered by the MIG, but aren’t deemed “catastrophic”. As per s. 18(2), an injury may also fall outside the MIG if it’s not ‘predominantly minor’ or [if it is]…, it’s exacerbated by a documented ‘pre-existing condition’ that hinders the victim’s maximal recovery if they’re subject to the MIG’s limitations.

The SABS currently provides no definition for “non-catastrophic impairments”, so they occupy a ‘no man’s land’ between the MIG and CAT criteria. Last year, insurance companies slotted 70 to 80% of their cases under the MIG. That’s crucial since MIG designations both reduce benefits and/or restrict eligibility for them. As a result, there is great incentive to get a MIG exemption.

The second part of the ‘knot’, are the aforementioned benefits. Pre-SABS, non-catastrophically injured claimants were eligible for many benefits, including those for attendant care which used to max out at $72,000. Now, victims are entitled up to $3,000 per month for 2 years post- accident as per s.19 (3) (2) ii. However, the new maximum payable without ‘buying-up’ back to $72,000 is only $36,000 as per s. 20 (2).

Attendant care is delivered by health care workers in-hospital or at home, and includes assisting patients with grooming, dressing, bathing, toileting etc. These services are also performed by family members, and [given their personal nature], it’s not surprising most victims and their kin prefer that. Moreover, most families can’t afford professional care and the fact that lower SABS rates don’t reflect the real market rates for it only aggravates that.

Equally frustrating is the controversial notion of “incurred expense”. Victims seeking to collect attendant care benefits must prove their caregivers experienced hardship by caring for them. As per s. 3(e) of the SABS, they must show: they received the goods or services related to the expense; paid, promised to pay or are legally obligated to pay the expense, and the person who provided the goods or services did so in the course of their regular occupation, or sustained an economic loss [italics added] from doing so.

The idea of “incurred expense” is at best exclusionary, and at worst, discriminatory. It grossly undermines the sacrifices caregivers make on the basis of age, academic or employment status. Arguably, homemakers, retirees, students, or the unemployed will be hard-pressed to demonstrate how much work they’ve missed or income they’ve lost. The best example is of the homemaker who cares for her injured child. If you subscribe to such narrow logic, than homemakers can’t be compensated since you can’t monetize their time or valuable contributions.

Since 2010, s. 3(e) has wreaked havoc on the lives of the non-catastrophically impaired and their caregiving families. Most legal professionals view the legislation as punitive and unjust. If you believe you’ve been victimised by it, please enlist the assistance of a reputable personal injury lawyer who can obtain the fair compensation you and your family are entitled to.

Mr. Intraligi is a personal injury lawyer and the founder of www.intraligilaw.ca offering free consultations for all victims of car accidents, slip and falls and all other type of personal injury related matters.