The Older Claimant
Originally posted @ allaboutestates.ca on September 10, 2015
The Ontario Automobile Insurance Statutory Accident Benefits Schedule was revised on August 27, 2015 and further cuts to the coverage for injured claimants was made. These changes take effect on June 1, 2016.
For the most seriously injured, those claimants who have sustained a ‘catastrophic injury’, the total benefit is to be reduced from $2 million to $1 million. These monies include both attendant care services and medical and rehabilitation goods and services.
If the injured person qualifies for a caregiver benefit, the following applies ( which appears NOT to have changed)
13. (1) The insurer shall pay a caregiver benefit to or for an insured person who sustains a catastrophic impairment as a result of an accident if, as a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she was engaged at the time of the accident and if, at the time of the accident,
(a) the insured person was residing with a person in need of care; and
(b) the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities. O. Reg. 34/10, s. 13 (1).
(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care, but shall not exceed,
(a) $250 per week for the first person in need of care; and
(b) $50 per week for each additional person in need of care. O. Reg. 34/10, s. 13 (2).
(3) Despite subsection (1), no caregiver benefit is payable to an insured person if he or she is eligible to receive and has elected under section 35 to receive either an income replacement benefit or a non-earner benefit under this Part. O. Reg. 34/10, s. 13 (3).
(4) Despite subsection (1), no caregiver benefit is payable for any period longer than 104 weeks of disability unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life. O. Reg. 34/10, s. 13 (4). ( http://www.ontario.ca/laws/regulation/100034)
Generally speaking, many older individuals have medical or health concerns. Being involved in a motor vehicle accident can gravely impact a senior, frequently affecting them mentally, physically and cognitively. The impact on their independence is significant and for many, recovery is a slow process.
Having worked with hundreds of claimants over the years, the philosophical approach I know is that ‘we take them as they come’ or as referenced in the legal community as the ‘thin skulled’ plaintiff. “In 1996, Canada’ s Supreme Court in Athey v Leonati noted that the thin skull rule:
“…makes the TortFeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The TortFeasor must take his or her victim as the TortFeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.” “(duhaime.org)
I believe seniors have their own special needs and the reduction in accident benefits that are anticipated will have a negative impact on many claimants and especially our seniors.