Insurers should not rely on social programs

By: Patrick Brown, McLeish Orlando LLP

Published in: The Lawyers Weekly Mar. 28, 2014 issue

When a child or adult suffers a severe traumatic brain injury or spinal cord injury, the costs for care into the future are significant. Failure to adequately address the needs of a severely disabled client through medical evidence and a solid life care plan can have a disastrous impact on the case. Since the needs are for a lifetime, many items equate to high figures.

Traditionally, the insurer and defence counsel have contested the care costs items on the basis that the specific item being sought is either not needed to the extent asserted, is unreasonable, or the market rates are much lower.  These legitimate arguments have controlled unreasonable and exaggerated wish lists when presented by overzealous life care planners.  On occasion, however, the insurer will go beyond these legitimate arguments and seek to reduce their exposure by relying on social welfare programs.  In other words, the life care planner simply asserts in their report that the item should not be allowed because publicly funded social service nets are in place to care for the plaintiff.

This argument is more prevalent when the severely disabled person does not have access to collateral benefits and must rely on social safety nets to survive while their case is pending. The programs include March of Dimes, Ontario Trillium Fund, Community Care Access Centres, the Residential Rehabilitation Assistance Program, and others.  This line of attack has been rejected repeatedly by our courts.  Despite the rejection, certain life care planners still try to reduce claims on this basis.

In the seminal decision of Andrews v. Grand & Toy Alberta Ltd. [1978] 2 S.C.R. 229, the Supreme Court held that the purpose of the care costs is meant to improve the mental and physical health of the injured person, not simply sustain it. The Court in Andrews went onto hold that the assessment of future care costs should not consign the injured person to a minimum standard of living. The obligation is to do more than simply “provide.” Unfortunately, this is exactly what social welfare programs do.  The other inherent flaw is the very real possibility that the funding for the particular government program will cease to exist or be reduced well after the trial or settlement.  This is in addition to the constantly changing eligibility requirements that can leave the disabled person on the outside, without any help or recourse.

There are also troubling implications for a disabled person’s family members. In essence, the reduction of services provided to them will simply place the shortcomings on the shoulders of their loved ones. In Marcoccia (Litigation Guardian of) v. Gill [2007] O.J. No. 1333, where a 20-year-old catastrophically injured Plaintiff was awarded future care costs based on an assessment that excluded family support, Justice Patrick Moore specifically held that “for the purposes of assessing future claims, the family must be taken out of the picture.”

Courts have fortunately recognized the problems with reducing awards due to social programs and have not allowed the costing to be reduced when the argument is advanced. In Stein (Litigation Guardian of) v. Sandwich West (Township) [1993] O.J. No. 1772, Justice Thomas Zuber held that a reduction in the future cost of care for government-funded services should not be permitted due to “the uncertain expectation of government help”. The Ontario Court of Appeal upheld this finding and adopted the argument that victims of tortfeasors should not be forced to accept all publicly funded services, nor should service levels provided by social programs form the standard for tort compensation. Indeed, as it was held by Justice A. Paul Dilkes in MacLean v. Wallace [1999] O.J. No. 3220, if one party must bear the risk of uncertain government funding, it ought to be the Defendant.

Therefore, an insurer’s attempt to reduce a disabled person’s standard of living to one that is supported by only marginal levels of uncertain assistance must be resisted by counsel.  It is an approach that runs counter to the most basic principles of the law. A plaintiff ought to be entitled to compensation for their necessary and reasonable expenses. While they are certainly not entitled to a life of decadence following an injury, they need not accept a life that provides, at best, a minimum standard of living.  In addition, life care planners must ensure that the principles of compensation as determined by jurisprudence should guide their life care plans.  To ignore such fundamental principles of law may jeopardize their ability to be qualified as an expert.

Patrick is a partner at McLeish Orlando practicing critical injury law. He is chair of the OBA insurance section and past president of the Ontario Trial Lawyers Association.

This article originally appeared in the March 28, 2014, issue of The Lawyers Weekly published by LexisNexis Canada Inc.

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