One of the more confusing aspects of adjusting an accident benefits claim is dealing with the numerous amendments to the Statutory Accident Benefits Schedule (SABS). Not surprisingly, during the life of an accident benefits claim, the SABS may be amended several times, each time enacting new provisions that may (or may not) affect the benefits available to a claimant. Over the past few years adjusters have had the unpleasant task of attempting to reconcile the transition provisions in the SABS on a number of key fronts, the most prominent of which being entitlement to interest after September 1, 2010 and the amount of attendant care payable after February 1, 2014 for services provided by a non-professional.

The issue of whether SABS amendments apply retroactively was addressed in Federico v. State Farm (FSCO Appeal Decision, P12-00022). In this case, the claimant was involved in an accident on December 20, 2006. One of the disputed issues was whether or not the claimant was entitled to interest beyond September 1, 2010 in the amount of 2% compounded monthly (pursuant to the 1996-SABS) or 1% compounded monthly in accordance with the amendments which became effective September 1, 2010. It was found that the wording of section 3(1.4) did not provide for interference with the substantive right of entitlement to interest in the amount of 2% per month. Thus the introduction of the distinction between substantive/vested rights vs. procedural rights. Essentially, this case set off a chain of litigation which attempted to deal with the transition provisions as the result of amendments to the SABS in the context of whether the amendment affects a substantive right or a procedural one. If the change was procedural only, it was generally felt that the change could take affect retroactively. This included the decision in Davis v. Wawanesa Mutual Insurance Company. In that case, the claimant was seeking a determination of whether or not her attendant care benefits were subject to the February 1, 2014 amendment to the SABS which limited the maximum amount payable to a non-professional service provider to the lesser of the economic loss of the service provider or the Form 1 amount. The accident occurred prior to the amendment and the claimant’s attendant care benefit was ongoing as of February 1, 2014. The arbitrator found that the amendment would affect a substantive and vested right and therefore did not apply to the claimant’s accident benefit claim. The decision was upheld on appeal to the Superior Court.

However, on April 6, 2017, Director’s Delegate Rogers released an appeal decision in the case MVACF v. Barnes (P16-00087). The same issue was at play as in the Davis case above but Director Rogers came to the opposite conclusion. In fact, he went further and found that there are no vested rights in unchanged SABS at all due to the fact that these benefits are not part of a private contract between parties who have control over the terms of the contract and changes thereto as well as the fact that rights cannot vest in context of SABS benefits as they are subject to ongoing qualification for the benefit in dispute. In Director Roger’s opinion, Ms. Barnes did not have a vested right in attendant care benefits simply because she was injured in an MVA, instead her right to the benefit was contingent on her ongoing need, the provision of services and that the benefit is incurred. It was also found that the application of the amendment was prospective and not retrospective or retroactive.

Contrary to the outcome in Davis, Director Rogers found that attendant care benefits payable beyond February 1, 2014 in relation to a pre-February 1, 2014 MVA are limited to the amount of economic loss sustained by a non-professional service provider.

This case will have future implications in adjusting accident benefits claims and likely sooner than later as the June 1, 2016 amendments to the SABS have recently come into force.