Summary of Changes to Statutory Accident Benefits

ONTARIO PSYCHOLOGICAL ASSOCIATION
Presented to: Ontario Psychological Association
Prepared by: Rhona L. Waxman Law Offices

Application of the new SABS:

The general rule is that the new SABS only apply to accidents that occur on or after September 1, 2010. 
There are numerous exceptions to this general rule.  The exceptions are found listed in the SABS, under s.2, and in another Regulation: Ontario Regulation 35/10, which is attached.

If there is an exception listed, this exception will apply on September 1, 2010 to all accidents, whether they occurred before or after September 1, 2010.

The following are a list of the exceptions:

  1. s.25(1) for the cost of examinations
  2. s.25(3) with respect to the guidelines for the professional services rendered
  3. s.25(4) with respect to transportation expenses
  4. s.25(5) in that the maximum for assessments or examinations is $2,000.00 (the maximum amount for an assessment or examination is $2,000.00 no matter when the accident occurred)
  5. The procedure for claiming benefits under Part VIII
  6. The procedure for payment of benefits under Part XI
  7. For accidents prior to September 1, 2010, a reference to the pre-approved framework guideline shall now be read as a reference to the minor injury guideline 
  8. The delivery of a disability certificate for the purpose of section 20, 35 or 27
  9. The delivery of a notice to an insurer under subsection 32(1) of a person’s intention to apply for a benefit
  10. A request under clause 37(1)(a) by an insurer
  11. The delivery of a treatment confirmation form for the purpose of section 37.1 or 37.2
  12. The delivery by an insurer of a notice for the purpose of section 37.3
  13. The delivery of a treatment plan for the purpose of section 38
  14. The delivery by an insurer of a notice for the purpose of section 38.1
  15. The delivery of an application under section 38.2 for approval of an assessment or examination
  16. The delivery under section 39 of an assessment of attendant care needs
  17. The delivery by an insurer of a notice for the purpose of subsection 39(5)
  18. The delivery of an application under section 40 for a determination of whether an impairment sustained by the insured person is a catastrophic impairment
  19. The delivery by an insurer of any notice requiring an insured person to be examined under section 42.

For all the above listed exceptions, the new SABS will apply, even if the accident occurred before September 1, 2010.

s.68 For anyone involved in a motor vehicle accident between September 1, 2010 and when he or she gets a new policy of insurance, he or she will be deemed to have optional benefits for caregiver, housekeeping and attendant care benefits.  He or she will also have a $100,000.00 maximum medical and rehabilitation benefit.   

Minor Injury:

s.3 “Minor injury” is defined as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, and any clinically associated sequelae. 
There will be a minor injury guideline which is not yet published.  It will establish a treatment framework with respect to one or more minor injuries.
The terms sprain, strain, subluxation, whiplash associated disorder and whiplash injury are also defined in s.3.  

CAT Definition:

s.3 It is changed to include loss of a single arm or a single leg. 
This section requires that a physician state in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment.  This can be stated by a neuropsychologist in the case where the impairment is only a brain impairment. 
This change in definition will only apply to motor vehicle accidents after September 1, 2010. 

Definition of Incurred:

s.3(7)(e) There are three requirements for an expense to be incurred.  They are:

i)  the insured person has received the goods and services
ii) the person has paid or promised to pay, or is legally obligated to pay the expense
iii) the person who provided the goods and services did so in the course of his regular occupation or profession, or sustained an economic loss as a result of providing the goods or services. 

Income Replacement, Non-Earner and Caregiver Benefits:

Part II A person who is self-employed establishes his pre-accident income based on his income tax returns.
Although the limit for income replacement benefits is still $400.00 per week,  income replacement benefits are calculated at 70% of pre-accident gross income. 
The insurer is required to pay for the accountant’s report to determine income replacement benefits. 
Someone can only receive caregiver benefits if they are CAT.  However, somebody who would have been eligible for caregiver benefits who is not CAT can still apply for non-earner benefits.

Monetary Limits for Medical and Rehabilitation Expenses

s.18 If the injury is predominantly a minor injury, the limit is $3,500.00. 
This monetary limit will not apply if the insured’s health practitioner provides compelling evidence of a pre-existing medical condition that will prevent the insured from achieving maximal recovery from his minor injury. 
s.18(3) The maximum for medical and rehabilitation benefits for CAT impairments is $1 million and for non-CAT impairments is $50,000.00. 
Monetary limits will include the costs of assessments and the cost of examinations.
Costs of examinations under s.25 are payable under the new SABS amounts, whether the accident occurred before or after September 1, 2010. 

Attendant Care:

Please note the new definition of incurred.  There is a new form to assess attendant care. 
s.19(3)  The limit is $3,000.00 per month for non-catastrophic cases.  The total amount of attendant care payable is $36,000.00 and it is limited for two years.
For CAT cases, the maximum is $6,000.00 per month and the total is $1 million. 

Duration of Medical and Rehabilitation Expenses:

s.20 It is payable for ten years if one was over 15 at the time of the accident.  If one was under the age of 15, then it is payable until one’s 25th birthday. 

Housekeeping:

s.23 It is only payable if one is CAT.

Cost of Examination:

s.25 Both s.25 and 38 deal with the cost of examinations. 
s.38 Under s.25, it would appear that no prior approval is required for disability certificates, assessments under the minor injury guideline, for the fees charged by an occupational therapist or nurse in preparing an assessment of attendant care needs, or for reasonable fees charged in the preparation of an application for catastrophic determination.
However, under s.38, an insurer is not liable to pay an expense with respect to a medical or rehabilitation benefit or an assessment or examination unless there is prior approval. 
There are several ways this apparent contradiction can be interpreted.  I believe that the correct interpretation is that the requirement for prior approval under s.38 only applies to assessments and treatment plans for medical and rehabilitation benefits. In s.25 the exceptions that do not require prior approval, are for assessments and treatment plans that are not for medical and rehabilitation benefits.
Certainly with respect to the s.25 assessments, the insurer can refuse to pay in any event if it believes that the fees with respect to the assessment are unreasonable.
There are, however, several things about the cost of examination that we do know.  The cost of an assessment or an examination cannot exceed $2,000.00 per assessment or examination. This cap also applies to IE’s.  I believe that some insurers are likely to interpret the $2,000.00 cap to apply to the total cost of the assessment. 
The insurer is not required to pay for the cost of the future care costs report.
The insurer is not required to pay for an assessment or examination conducted in the insured person’s home unless the insured person has sustained an impairment that is not a minor injury. 
It is clear that under s.38, there is no prior approval required for assessments in situations where:

  1. The insurer has waived the requirement.
  2. For ambulance expenses or for other goods and services provided on an emergency basis within five (5) days of the accident.
  3. Prescription drugs and goods costing less than $250.00.

An insurer can refuse to accept a treatment and assessment plan if it relates to the same period in which the insured person was receiving goods or services under the minor injury guideline.  This refusal is final and not subject to review.

IE’s for Specified Benefits (income replacement benefits, non-earner, caregiver and housekeeping benefits):

s.37 An insurer, if it wishes to determine if someone is entitled to a specified benefit may request a new disability certificate or notify the insured that it requires an IE under s.44, or can do both. 
An insurer does not have to request an IE before terminating a benefit. 
The insured has 15 business days to supply a new disability certificate when requested.

An insurer cannot discontinue paying a specified benefit unless:

  1. the insured doesn’t supply a disability certificate
  2. the disability certificate does not support their entitlement to the benefit
  3. the IE states they are not entitled to the benefit
  4. the insured refuses to attend an IE
  5. the insured has resumed his or her pre-accident employment
  6. the insurer is entitled to discontinue pursuant to s.28(1), 33(6), 57 or 58
  7. the insurer is entitled to terminate the benefit for a reason other than impairment.

Claims under the Minor Injury Guideline:

s.40   This is very straightforward.  The intention is to make this as easy as possible for the insured to fit under this guideline and for treatment providers to receive payment.

Claim for Attendant Care:

s.42   There will be a new form. 
The form must be completed by an occupational therapist or a registered nurse. 
The insurer can request an IE with respect to attendant care or can request a new assessment. 
The insured can submit a new attendant care assessment whenever there are changes.

Insurer Examination:

s.44   The insurer may request an IE, but it is not an obligation. 
The insurer IE is also subject to the $2,000.00 cap for each assessment or examination. 

Determination of Catastrophic Impairment:

s.45   The assessment or examination shall be conducted by a physician unless the impairment is only a brain impairment, then it can be conducted by a neuropsychologist.
It appears that the Government will be publishing guidelines with respect to conditions, restrictions or limits with respect to the determination of whether an impairment is catastrophic. 
s.45(3)(b) The insurer can deny catastrophic impairment by stating the medical and any other reasons for the decision.  The insurer may request an IE but has no obligation to do so.
s.45(6) If someone is determined to be catastrophic, then he or she is entitled to benefits on the catastrophic level, retroactively.

Benefit Statements:

s.50 In non-CAT cases, an insured is entitled to a statement from the insurer of the benefits he or she has received every two months. 

Interest:

s.51 The interest rate has been changed from 2% compounded to 1% compounded.

There is an obligation for rehabilitation:

s.57 The insured has an obligation to participate in medical and vocational rehabilitation.

Rebuttal Examinations and Reports:

These are eliminated.

OCF-18’s and OCF-22’s:

Treatment plans and applications for approval of assessments or examinations have been merged into one process.