Court Comes to the Aid of Injured Parents and Other Caregivers

The recent decision of the Ontario Divisional Court in G.B. v. Pilot Insurance Co. [2008] O.J. No. 288 has provided a welcome interpretation of the “other goods and services” provision under the Medical, Rehabilitation and Attendant Care benefits section, s. 15(5)(1), of the Statutory Accident Benefits Schedule-Accident on or after November 1, 1996 (hereinafter referred to as the S.A.B.S.).

On August 28, 1998, Miss G. was involved in a car accident. At that time, she was 22 years old, single and childless. As a result of the accident, she suffered serious injuries. Some 5-1/2 years post accident, after Miss G. had married, she gave birth to a daughter on April 20, 2004. Due to the injuries she suffered in the accident, Miss G. was unable to perform many of the activities necessary to care for a young child.

Miss G. applied to Pilot insurance for payment of nanny expenses, under the “other goods and services” sub-section of the medical/rehabilitation benefits section of the policy [s. 15(5)(1)]. Pilot refused to pay for the nanny expenses.

The issue came before Arbitrator Blackman, who considered numerous arguments presented by Pilot, for why Pilot should not have to pay the nanny expenses. The Arbitrator rejected each of Pilot’s arguments, and ordered Pilot Insurance Company to pay Miss G. the nanny expenses pursuant to s. 15(5)(1). Pilot Insurance appealed the decision to the Director’s Delegate, and successfully overturned the Arbitrator’s decision. The Director’s Delegate concluded that to allow nanny expenses to be claimed under the medical/rehabilitation benefits section (s. 15), would make the caregiver benefit section (s. 13) meaningless.

The Divisional Court overturned the appeal decision of Director’s Delegate Makepeace, and restored Arbitrator Blackman’s Order that the nanny expenses be paid as a medical/rehabilitation expense under s. 15(5)(1) of the S.A.B.S.

Throughout the case, Pilot Insurance argued that child care was governed exclusively by s.13 (the caregiver benefit section) of the S.A.B.S. Pilot further argued that “nanny expenses”, were essentially child care expenses, and could not be obtained under the medical/rehabilitation section (s. 15 of the S.A.B.S.), as this would constitute “double-dipping” by the insured.

Justice Lane on behalf of the three member Divisional Court, carefully reviewed s.15 (the Medical/Rehabilitation Benefits section) and its interplay with s. 13 (the Caregiver Benefits section). Justice Lane concluded that s. 15 of the S.A.B.S. is a broadly worded section which in the case of a dispute, must be given an interpretation most favourable to the insured. Justice Lane also stated that nothing in Section 15(5) expressly excludes nanny services from the scope of medical/rehabilitation benefits.

Based on the medical evidence, the Arbitrator and the Divisional Court concluded that the nanny services qualified as a medical/rehabilitation expense, since provision of such services to the applicant would “reduce or eliminate the effects of a caregiver’s accident-related disability or facilitate her reintegration into her family and the labour market.”

Justice Lane also dismissed the double-dipping argument. In considering whether nanny expenses could be considered under section 15, despite the wording of the caregiver benefits section (section 13) his Honour stated:

“Section 15 deals with the rehabilitation of the injured person herself; Section 13 deals with an allowance to replace the caregiving services which the injured person provided to others at the time of the accident.

The circumstances giving rise to the need are utterly different, as are the terms on which payment can be made under the two sections.

There is no necessary or logical inference that because such expenses can be obtained pursuant to one section of the Regulations in one set of circumstances, they could not be obtained in a different set of circumstances under a different section of the regulations, always subject to the common sense rule that the same expenses will not be covered twice.”

The decision of the Divisional Court underscores the importance of ensuring that if a claim is being made for services under section 15, and in particular under the “other goods and services” category [s. 15 (5)(1)], a medical/rehabilitative purpose must be demonstrated in order to be entitled to the benefit claimed.

It would appear that the reasoning of the Divisional Court would apply whether the injury was physical, psychological or as a result of a brain injury, as long as the injury inhibits the person’s ability to provide care, and interfers with their ability to continue rehabilitation.

Similarly, the reasoning of the Divisional Court should extend to a myriad of other situations where family members provide care to other family members, such as:

1. fathers who prior to the accident were assisting in the care of their children;
2. parents who prior to a an accident were caring for a disabled child;
3. a child who prior to the accident, was providing care to an elderly or disabled parent.