Law Times

Page 8 May 5, 2014 • Law TiMes www.lawtimesnews.com Focus on Personal Injury Law Plaintiff lawyers unhappy with attendant care changes Counsel changing advice on whether family members should assist ecent amendments that tie attendant-care benefits to economic loss have prompted personal injury law- yers to change their advice on whether families and friends should take on the care of their loved ones. e diminution of attendant- care rates began in 2010 when it became necessary for caregivers to prove a loss of income before receiving compensation in ac- cordance with Form 1. In Henry v. Gore Mutual Insurance Co., the Ontario Court of Appeal recog- nized that proving an economic loss was only a threshold test and not the measure of the ben- efit. However, on Feb. 1, Ontario Regulation 347/13 came into force that reversed the decision and limited attendant-care ben- efits to the amount of the family member's actual economic loss. e change occurred without warning or consultation. Robert Deutschmann of Paquette Trav- ers & Deutschmann in Kitchen- er, Ont., was unhappy with the way the government introduced the regulation. "is legisla- tion was clearly done without thought and certainly with- out any consultation with stakeholders other than On- tario's insurers." Rikin Morzaria, a partner at personal injury law firm McLeish Orlando LLP, de- scribes it as a small change that will have a dramatic im- pact on families. "It is a type of change that is quite difficult to understand unless you are in the field. It doesn't intuitively jump out at you as an unfair practice until you realize what you're expected to do for a very small payment." e Financial Services Commission of Ontario notes the regulatory change is an effort to help reduce costs and provide more certainty with the aim of making auto insurance rates more affordable for drivers. Maia Bent of Lerners LLP's London, Ont., office ques- tions the rationale. "If cost saving for the insurance industry was the goal, there were other ways to achieve that without harming the injured. It is a very unfortu- nate change that hurts the most vulnerable people who are so badly injured that they need at- tendant care. If a consultation was held, we would have worked something out." Ralph Palumbo, the Ontario vice president of the Insurance Bureau of Canada, says his or- ganization welcomes regulations that clarify the application of provisions in the auto insurance policy. "Nonetheless, experience with past reforms shows that there is always a risk of unintend- ed consequences, particularly because it is difficult to anticipate how stakeholders will respond." e Ministry of Finance was unable to comment on the lack of consultation. As a result, those involved in the area are struggling to understand the reason for the change. "If it is ac- cepted that there is the potential to compensate for this service at the Form 1 levels, which already do not reflect the reality of the marketplace, what does it mat- ter if the service is provided by a family member or a support worker?" asks Deutschmann. "Each provides advantages to the injured person, but now certainly one type of support has been severely limited." In some cases, attendant-care benefits will equate to only a fraction of the minimum wage, particularly if the caregiver was working part time and is now providing almost full-time care. "Carers' lives are turned upside down already if they have ef- fectively given up outside work," says Morzaria. "ey may have chosen for lifestyle reasons or health to work at reduced capacity but they don't have that choice any- more. If you are replacing the $200 a week you got at work and providing 18 hours a day [of ] care, that equates to $1 to $2 an hour." Morzaria notes the Form 1 rates don't equate to wages. "e rates are lower than the aver- age market rate of $17 an hour. If you need 24-hour care, they equate to $8 to $11 an hour, so you can only purchase a fraction of the care. You are le to find someone who will accept rates at some level less than minimum wage. Typically, you will end up doing cash under the table with unskilled workers. ere is no other option. Ei- ther you are shortchanged on the amount of care required or you have to find a person who is less than ideal." Palumbo notes there has been a concern that non- professional caregivers who suffer an economic loss, no matter how small, can access the maximum amount of attendant-care benefits avail- able under the auto insurance policy. "e amount available can be as much as $3,000 per month for non-catastrophic claims and $6,000 per month for catastrophic impairment claims. Of course, the care- giver is still required to iden- tify the care that is needed." While FSCO notes the bene- fit still allows injured people the choice to receive attendant-care services from professional pro- viders, lawyers say the change will effectively force them to choose that option despite oen preferring to get help from fam- ily and friends. "Attendant care is typically provided by family and friends," says Bent. "It is required at strange hours or for portions of the day. You can't get a professional in for 30 minutes of care at bedtime." "Care is so personal and oen quite intimate," says Morzaria. "It is the one place where you want family members encour- aged to help. Underpaying family members will eliminate choice." ere are also increased costs to insurers. In the April 14 KPMG LLP report on transpar- ency and accountability, insur- ers suggested any cost saving from the changes would erode as people looked to private pro- viders rather than their family members. Morzaria confirms personal injury lawyers are advising peo- ple who are stuck in the system to hire an agency to provide attendant-care benefits in the future with family members providing additional help with- out compensation while main- taining their outside jobs. ose higher benefit levels will then factor into settlement amounts or filter down to tort insurers. "We traditionally haven't put forward claims for the value of service provided in the past, but if family members are provid- ing almost 24 hours [of ] care for minimal to no compensation, we will." LT 'It is a very unfortunate change that hurts the most vulnerable people who are so badly injured that they need attendant care,' says Maia Bent. BY JUDY VAN RHIJN For Law Times R Your Partners in Service ® Since 1981 1.800.263.8537 www.henderson.ca Proud Sponsor of Henderson_LT_May5_14.indd 1 14-05-01 2:18 PM

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