Law Times

LAW TIMES / APRIL 28, 2008 FOCUS PAGE 19 It's okay to 'double dip' accident benefits, suggests court BY GRETCHEN DRUMMIE Law Times N ormally, a 22-year-old unmarried, employed, childless woman who has an accident can get income replacement benefits — but she can't come back later and qualify for caregiver services for a child who didn't exist at the time. Or can she? A recent decision of the Ontario into the family," says Samworth. "This is arguably a fact in almost every case where someone with children is injured." In November 2004, after GB's dence, entitled to both, although the caregiver benefit would now be delivered or characterized as a rehabilitation benefit." Divisional Court suggests that even if you have children after an accident you will be able to "double dip" and get access to income replacement benefits and a caregiver in the guise of a rehabilitation benefit. It's the result of GB v. Pilot Insurance Co., says a Toronto lawyer. "I predict that all hell will break loose and my clients are going to see what I'm now calling a GB applica- tion, which will be a treatment plan for nanny expenses under s. 15 [of Bill 198] for someone who has qual- ified under an income replacement benefit," says Philippa Samworth of Dutton Brock LLP, who specializes in insurance defence, with a spe- cialty in accident benefits. The decision arises from an ac- cident in 1998 when GB was 22, with no children. GB is disabled as a result of the accident from fractures of her right forearm, right leg, heel, facial, jaw, and dental injuries. A future care report identified before the child was born that if GB had children she might need assistance with the physical side of care. She married in April 2004, and subsequently had a daughter. Now she claims that because of her inju- ries from the accident she can't do some physical activities required to care for her child, so she wants her insurance company to pay for the expense of a nanny. 15, the rehabilitation section of Bill 198, saying that it was a reasonable and necessary expense to facilitate her reintegration into her family, and it qualifies as other goods and services that she needs. "What I found interesting was What she claimed was under s. that no one seemed to raise the fact that the child was born after the ac- cident, or if they did it doesn't seem to play a role in the decision," says Samworth. "How can you argue you need a nanny to reintegrate into a family that did not exist at the date of the accident?" The argument focuses around baby was born, she submitted a treatment plan requesting the costs of nanny services and it was sup- ported by an RN. She said because of the right radius fracture it would be difficult to handle the baby. The first arbitrator found as a fact the childcare services would reduce or eliminate the effects of the disability and help reintegrate her into the family, and the court felt that finding of fact should have been given strong support. Samworth says the effect is ex- actly the contrary of what the court said, which was, "It's unreasonable to suppose that a floodgate will open and s.13 will be rendered un- necessary or ineffective." "I disagree with that," says Sam- worth. "We are now faced with an employed individual qualifying for an income replacement benefit and nanny expenses under s. 15 where prior to this decision such an individual would have to elect 'I predict that all hell will break loose and my clients are going to see what I'm now calling a GB application, which will be a treatment plan for nanny expenses under s. 15 for some- one who has qualified under an income replacement benefit,' says Philippa Samworth. between an income replacement benefit and a s.13 caregiver benefit. It would now appear [the insured] would be on the appropriate evi- When the accident happened GB was 22, unmarried, and work- ing. "She was given the income replacement benefit and obviously she couldn't get a caregiver benefit because to get caregiver you have to have at the time children who are under the age of 16, and who you are the primary caregiver to," says Samworth. "Now it seems whether you have your children before or af- ter then you're going to be able to double dip" access to two weekly benefits as opposed to one. Leave to appeal has been sought. Another hot topic in accident benefits is Belair Insurance Com- pany v. McMichael, says Samworth. It deals with a man who had some pre-accident problems with cocaine use, and subsequent to the accident his addiction became worse. He made a claim against the insurance company that he was catastrophically impaired and that he needed attendant care benefits from the two-year mark on. The main point was the insurer said no to attendant care because he wasn't catastrophic and therefore because he had no money he didn't pay anyone for attendant care ser- vices. When it went to arbitration, the first one found he was cata- strophic and entitled to the care. "The real question was did the insurer have to pay attendant care for the past when the gentleman had not incurred it," says Sam- worth. "And the arbitrator said yes [even though he hadn't paid any- body]. Basically it was money in his pocket for services that had never been provided to him." She says the rationale was that if they didn't make that kind of award that it encouraged insurers to say, "I'm not paying you, and if you win later we still don't have to pay you because you couldn't get the services thus putting to disadvantage people who wouldn't have the funds to get the services independently of the insurance company." The case was appealed twice with the divisional court ultimately in May 2007 upholding the origi- See Issue, page 21 the caregiver benefit under s. 13 and whether it occupied the field for caregiver/nanny services. The first arbitrator ruled that they could have the benefit under s. 15 but the director's delegate disagreed and set aside the first decision. The case went to Divisional Court and on Jan. 25 the court agreed with the first arbitrator. Samworth says an important as- pect of the decision is the finding of fact that the childcare services were needed for GB's rehabilitation to facilitate her reintegration into the family. The court said because of that finding there was no possibil- ity that this decision could be used as a precedent to open the door to the wholesale funding of childcare expenses in circumvention of s.13. "I don't agree with the court's conclusion as all anyone in Ms. GB's situation need do is offer evidence that the nanny is needed for rehabilitation and reintegration Untitled-5 1 Often imitated, never duplicated. The McKellar Structured Settlement™ For almost 30 years, McKellar has set the standard for excellence in structured settlements. With over 250 years of combined claims, legal, accounting and structure expertise at your disposal... Why settle for less? www.mckellar.com VANCOUVER 1-800-465-7878 EDMONTON 780-420-0897 McKELLAR STRUCTURED SETTLEMENTS INC. GUELPH 1-800-265-8381 www.lawtimesnews.com 4/22/08 10:39:52 AM HALIFAX 1-800-565-0695 USA 1-800-265-2789

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