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What does Incurred Expense for claiming Attendant Care Benefits mean?

The laws continue to get tougher and tougher on accident victims in Ontario for no apparent reason.


It’s not like the victim of a drunk driving accident did anything wrong. So why is it then that innocent accident victims are being treated like criminals at every turn when dealing with large insurance companies? Is this the new reality?

It seems this way because it really is this way.

When No Fault Accident Benefits were introduced in Ontario circa the 1980’s, it was introduced as “consumer protection legislation” intended at helping accident victims recover from their injuires. In plain English, the laws were created and intended to PROTECT and ASSIST the CONSUMER (that’s you), in your time of need.

There was a contract in place between insured and insurer. The driver would pay premiums to the insurer. In return, should the driver need the insurer’s assistance, the insurer would step in and provide benefits to their insured so they could get back on their feet to business as usual.

So where did things go wrong?

Another good question.

Every five years or so, the Provincial Government along with the Financial Services Commission of Ontario conducts a review of how accident benefits are working, and how effective they are.

In principal, this seems like a good idea. Let’s review the system every five years and see what works, what doesn’t work, and lets fix it.

The problem with this is that the only parties who really know what’s right, and what’s wrong with the system are lawyers (like me), and people who work in the car insurance industry.

Nobody really pays attention to how car insurance, accident benefits, and the laws surrounding car accidents in Ontario really work, until they themselves or a loved one has been involved in a car accident.

So, every five years, the Insurance Bureau of Canada would make submissions to government and to FSCO about what they’d like to see changed and why.

The Insurance Bureau of Canada or IBC is the lobby group which is wholly funded by, and represents the interests of large, deep pocketed insurance companies. Don’t be fooled by their really professional and public sector sounding name. Their interest are NOT your interests. Their resources are much larger than yours or mine. Even Donald Trump himself would have problems competing with the combined wealth that the IBC represents.

The IBC lobbies on a macro scale. Fighting one case is too small. But, if they can change the legislation to fight millions of cases, or prevent millions of cases from surfacing before they’ve even had a change saves their clients billions of dollars. This sort of lobbying has changed the legislation from consumer protection legislation intended on helping injured accident victims; to what has become legislation aimed at protecting the few and the priviledged.

Some small changes have come with the introduction of the deductible for motor vehicle accident claims. The deductible began at $15,000, and eventually doubled to $30,000. This means that if you sue, and you’re awarded $40,000 at trial by a Judge, the first $30,000 vanishes after the statutory deductible is applied; leaving you with just $10,000. If you’re suing over 2 accidents, then 2 deductibles apply! That means that even before you begin your claim, you might already be $60,000 in the hole after the application of the two $30,000 deductibles.

This doesn’t sound like the sort of legislation or proposal which your average citizen might suggest to government, now does it?

One of the biggest changes in recent years has been the reduction of med/rehab benefits from $100,000, down to $3,500 for cases which fit in to the arbitrary Minor Injury Guideline. That means that any case which an insurer deems to be “Minor”, will only be eligible for just $3,500 in benefits. This is another change of the legislation which favours ONLY deep pocketed insurers. It does NOT favour the general public in any way, shape or form.

Don’t believe me? Look at your car insurance bill. Did it go up in the past few years? I’m certain that it did. These legislative changes were supposed to bring your car insurance rates down. They’ve had the opposite effect. Your rates rose, and will continue to rise in to the indefinate future. I’m quite certain of that. These changes have simply created more work for medico-legal doctors arguing whether or not injuries fit under the minor injury guideline or not.masai.jpg

An insurer would rather spend money defeating your claim, than spend money treating you. Don’t believe me? I can tell you from first hand experience that for every dollar an insurer will spend on your treatment to get better; they will spend equal to that or more on assessment to defeat your claim.

Does that sound right? No it doesn’t, and every plaintiff personal injury lawyer will tell you that. But the people with the real power to make meaningful change on that MACRO level discussed earlier (not case by case) are politicians. They’re slaves to the party line. And you will quickly learn that ALL major political parties in Canada accept donations from insurers. They will expect something in return for their generosity.

Another significant change brought in on September 1, 2010 was the change of definition in order to claim an Attendant Care Benefit. The law around Attendant Care Benefits has now become a “rich person’s law“, in that only the wealth and the priviledged few are able to recover on this benefit.

The reason that the law of attendant care benefits is a rich person’s law, is that if you’re seeking this benefit, the care must be an incurred expense and there must be an econimic loss. That means that the accident victim will need to either have paid, or promised to pay the service provider AND the service provider needs to show that they have sustained an economic loss.

An unemployed person, student, or retired person CANNOT have sustained an economic loss on account of providing their injured family member an attendant care benefit because they were not working to begin with. It means that you really need to have shown that you’ve taken time off work and lost MONEY on account of being a service provider. If you work in a cash business, or at a job where showing that loss is difficult to quantify (like being a self employed contractor), then showing that loss is close to impossible.

I might also add that in situations where there is just a sniff of a self employed person, or small business operator, the insurer will NOT hesitate at investing $2,000-$5,000 for a forensic accountant to prove that there was NOT any economic loss to claim on; thus nullifying your benefit.

Things didn’t used to work this way. There didn’t use to be accident benefits. So, the entire medico-legal and legal-accounting industry for personal injury claims was pretty void in Ontario. Now, physicians and accountants are thriving on the work alone created by these legislative changes and referrals from personal injury lawyers and insurers alike.

I understand that it takes money to make money, and in many cases, it’s necessary to invest in order to properly present a claim. But when I see millions of dollars being spent by insurers to defeat somebody from getting just a bit of physiotherapy (NOT DAMAGES FOR PAIN AND SUFFERING), it makes me sick to my stomach.Ontarians pay the HIGHEST car insurance premiums in North America. And what do we get for it? Nothing tangible except perhaps a quickie $3,500 massage called the Minor Injury Guideline.

Done with the law stuff? Sure. Congrats to the Toronto Raptors on an entertaining season. When we began this ride, everyone supported a tank for Wiggins. But after trading Rudy Gay, chemistry developped and something magical happened that nobody expected. Well done Toronto. I hope that next year brings even more success. I wouldn’t want to be Masaii Ujiri. Some very difficult decisions to make this off-season. Do you think the Raptors could use a personal injury lawyer? I’m sure that MLSE has all sorts of in house counsel for their business dealings. Not sure if they have any use for a lawyer like me. Ah, well. I can always cheer them on. Until next season.

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