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Ontario regulation 26/06

made under the

Insurance Act

Made: February 3, 2006
Filed: February 7, 2006
Published on e-Laws: February 8, 2006
Printed in The Ontario Gazette: February 25, 2006


Amending O. Reg. 776/93

(Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996)

1. The definition of “spouse” in section 1 of Ontario Regulation 776/93 is revoked and the following substituted:

“spouse” means either of two persons who,

(a) are married to each other,

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Regulation, or

(c) have lived together in a conjugal relationship outside marriage at some point during the previous year and have lived together in a conjugal relationship outside marriage,

(i) continuously for a period of at least one year, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child or have demonstrated a settled intention to treat a child as a child of their family; (“conjoint”)

2. The Regulation is amended by adding the following section:

Application of Sections 21 to 25

20.1 Sections 21 to 25 apply only if, before March 1, 2006,

(a) the insurer has refused to pay weekly income replacement benefits under Part II, weekly education disability benefits under section 15, weekly caregiver benefits under Part IV or weekly disability benefits under Part V;

(b) the insurer has not made an offer with respect to the payment of weekly loss of earning capacity benefits under section 21 and there is no agreement under section 24 or 25; and

(c) an arbitration proceeding under section 282 of the Act or under the Arbitration Act, 1991

or a court proceeding has been commenced in accordance with subsection 279 (1) of the Act in respect of the insured person’s entitlement to a benefit referred to in clause (a).

3. Subsection 21 (6) of the Regulation is amended by striking out “and the insured person will be required to be assessed under section 27” at the end and substituting “and the insured person will be required to be examined under section 65”.

4. (1) Subsection 23 (2) of the Regulation is revoked and the following substituted:

(2) If an insured person rejects the insurer’s offer in respect of residual earning capacity, the insurer shall give notice that it requires the insured person to be examined under section 65.

(2.1) Within 14 days after receiving the report of the examination under section 65, the insurer shall give to the insured person a document setting out its determination with respect to the payment of loss of earning capacity benefits and the information specified in clauses 21 (5) (a) to (d).

(2) Subsection 23 (4) of the Regulation is revoked.

(3) Subsection 23 (5) of the Regulation is amended by striking out “the report from the designated assessment centre under subsection 27 (5)” at the end and substituting “the report of the examination conducted under section 65”.

(4) Subsections 23 (5.1) and (6) of the Regulation are revoked.

(5) Clause 23 (7) (b) of the Regulation is revoked and the following substituted:

(b) the examination referred to in subsection (2) may be delayed. 

(6) Subsection 23 (8) of the Regulation is revoked and the following substituted:

(8) Subject to subsection 65 (5.1) and to subsection 281 (4) of the Insurance Act, the insurer shall continue to pay benefits under Part IV or V pending the resolution of a dispute under this section, if the person continues to qualify for those benefits.

5. Section 25 of the Regulation is revoked and the following substituted:

Examination before Offer

25. A person who has not received an offer under section 21 and who is entitled to receive weekly income replacement benefits under Part II, weekly education disability benefits under section 15, weekly caregiver benefits under Part IV or weekly disability benefits under Part V may agree in writing with the insurer that the person shall be examined under section 65.

6. (1) Clause 26 (1) (a) of the Regulation is revoked.

(2) Section 26 of the Regulation is amended by adding the following subsection:

(3) In this Part,

“designated assessment centre” means an assessment centre designated before March 1, 2006 by the Superintendent under clause (1) (a), as it read before March 1, 2006.

7. Section 27 of the Regulation is revoked.

8. The Regulation is amended by adding the following section:

Transitional

27.1 (1) Sections 21 to 27, as they read on February 28, 2006, continue to apply in respect of loss of earning capacity benefits if, before March 1, 2006, an insurer has delivered a written offer with respect to the payment of weekly loss of earning capacity benefits to the insured person under subsection 21 (1), as it read on February 28, 2006, or if the insurer and the insured person have agreed in writing under section 25, as it read on February 28, 2006, that the insured person should be assessed under section 27.

(2) Despite subsection (1), if an assessment of an insured person by a designated assessment centre cannot be conducted or completed on or after March 1, 2006 because there is no designated assessment centre that satisfies the requirements of this Part, the insurer may give the insured person a notice in writing requiring the insured person to be examined under section 65 in respect of loss of earning capacity benefits, instead of being assessed by a designated assessment centre, and the provisions of this Regulation, as they read after February 28, 2006, apply in respect of loss of earning capacity benefits after the notice is given.

9. Subsections 33 (3), (4) and (5) of the Regulation are revoked and the following substituted:

(3) The insurer may, for the purposes of the review, give notice that it requires the person to be examined under section 65.

(4) After the review, the insurer shall give the person a notice of determination with respect to the review.

(5) If the insurer required an examination under section 65, the insurer shall give the notice of determination required under subsection (4) within 14 days after receiving the report of the examination.

(6) The notice of determination shall state,

(a) that the insurer shall continue to pay a weekly loss of earning capacity benefit in the same amount as the person’s current benefit, if the insurer determines there has been no material change in the ability of the person to earn the amount that is being used for the purpose of determining the person’s residual earning capacity; or

(b) that the insurer will pay the person a weekly loss of earning capacity benefit, as determined in accordance with section 28, based on the insurer’s determination of the person’s current residual earning capacity, as determined in accordance with section 30, if clause (a) does not apply.

(7) A notice of determination described in clause (6) (b) shall include,

(a) the type of employment that the insurer has determined will best satisfy the criteria set out in subsection 30 (2);

(b) the person’s residual earning capacity, as determined by the insurer in accordance with section 30;

(c) the reasons for the insurer’s determinations described in clauses (a) and (b); and

(d) the amount of weekly loss of earning capacity benefit, if any, payable to the person, as determined by the insurer in accordance with section 28.

(8) Sections 28 to 30 apply, with necessary modifications, for the purposes of adjusting the amount of the weekly loss of earning capacity benefits payable to a person.

(9) An insurer shall not reduce the amount of the weekly loss of earning capacity benefits payable to a person unless,

(a) the insurer required the person to attend an examination under section 65 and has received the report of the examination; or

(b) the insurer is entitled to withhold payment of the benefits under subsection 65 (5.1).

(10) Sections 21 to 27 and subsections (1) to (5), as they read on February 28, 2006, continue to apply in respect of a review by an insurer of the amount of weekly loss of earnings capacity benefits if, before March 1, 2006, the insurer made an offer under subsection (3), as it read before March 1, 2006, in respect of the amount of the benefits.

(11) Despite subsection (10), if an assessment of a person by a designated assessment centre cannot be conducted or completed on or after March 1, 2006 for the purposes of a review under this section because there is no designated assessment centre that satisfies the requirements of this Part, the insurer may give the person a notice in writing requiring the person to be examined under section 65 in respect of the review, instead of being assessed by a designated assessment centre, and the provisions of this Regulation, as they read after February 28, 2006, apply in respect of the review after the notice is given.

10. Subsection 34 (6) of the Regulation is amended by striking out “Subsections 33 (3) to (5)” at the beginning and substituting “Subsections 33 (3) to (11)”.

11. Subsection 36 (4) of the Regulation is amended by striking out “subsection (5), clause 39 (11) (b) and subsection 39 (12)” and substituting “subsections (5) and 39 (6)”.

12. (1) Clause 38 (1) (a) of the Regulation is revoked.

(2) Section 38 of the Regulation is amended by adding the following subsection:

(3) In this Part,

“designated assessment centre” means an assessment centre designated before March 1, 2006 by the Superintendent under clause (1) (a), as it read before March 1, 2006.

13. (1) The heading before section 39 and subsection 39 (1) of the Regulation are revoked and the following substituted:

Examination

(1) If the insurer receives a certificate under section 37 in respect of an expense, the insurer may give the insured person a notice requiring the person to be examined under section 65.

(2) Subsections 39 (5), (6), (6.1), (7), (8), (9), (10), (11) and (12) of the Regulation are revoked and the following substituted:

(5) If the insurer requires the insured person to be examined under section 65, the insurer shall provide the insured person with 14 days notice of the examination and 14 days notice of the examination shall be considered to be reasonable notice of the examination for the purposes of subsection 65 (2).

(6) Subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Act, the insurer is not required to pay an expense if the insurer has received the report of the examination under section 65 and gives notice under subsection 39.1 (6) that it refuses to pay the expense.

14. (1) Subsection 39.1 (4) of the Regulation is amended by striking out “that an assessment be conducted under section 39” in the portion before clause (a) and substituting “that an examination be conducted under section 65”.

(2) Clause 39.1 (4) (b) of the Regulation is revoked and the following substituted:

(b) the insurer shall,

(i) mail or deliver the payment of the expense to the person entitled within 14 days after the insurer receives the report of the examination under section 65, or

(ii) give the person a notice in accordance with subsection (6) if the insurer refuses to pay the expense; and

(3) Subsection 39.1 (6) of the Regulation is revoked and the following substituted:

(6) If the insurer refuses to pay a benefit under this Part, it shall give the insured person notice of the reasons for the refusal within 14 days after the insurer receives the report of the examination under section 65.

15. The Regulation is amended by adding the following section:

Transitional

39.2 (1) Subsection 36 (4) and sections 39 and 39.1, as they read on February 28, 2006, continue to apply in respect of a claim for payment of an expense under section 36 if, before March 1, 2006, an insurer has given a notice to the insured person under section 39, as it read on February 28, 2006, requiring the insured person to be assessed.

(2) Despite subsection (1), if an assessment of an insured person by a designated assessment centre cannot be conducted or completed on or after March 1, 2006 because there is no designated assessment centre that satisfies the requirements of this Part, the insurer may give the insured person a notice in writing requiring the insured person to be examined under section 65 in respect of the claim, instead of being assessed by a designated assessment centre, and the provisions of this Regulation, as they read after February 28, 2006, apply in respect of the disposition of the claim after the notice is given.

16. Subsection 40 (7) of the Regulation is amended by striking out “subsection (8), clause 45 (11) (b) and subsection 45 (12)” and substituting “subsections (8) and 45 (4)”.

17. Section 44 of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

44. The assessment centres designated before March 1, 2006 for the purpose of Part VII shall be deemed to have been designated for the purpose of this Part and,

. . . . .

18. (1) The heading before section 45 and subsection 45 (1) of the Regulation are revoked and the following substituted:

Examination

(1) If the insurer receives a certificate under section 43 in respect of an expense, the insurer may give the insured person a notice requiring the insured person to be examined under section 65.

(2) Subsections 45 (3), (4), (5), (6), (6.1), (7), (8), (9), (10), (11) and (12) of the Regulation are revoked and the following substituted:

(3) If the insurer requires the insured person to be examined under section 65, the insurer shall provide the insured person with 14 days notice of the examination and 14 days notice of the examination shall be considered to be reasonable notice of the examination for the purposes of subsection 65 (2).

(4) Subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Act, the insurer is not required to pay an expense if the insurer has received the report of the examination under section 65 and gives notice under subsection 45.1 (6) that it refuses to pay the expense.

19. (1) Subsection 45.1 (4) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

(4) If, before payment becomes overdue under clause (3) (b) in respect of an expense under section 40, the insurer requires an examination under section 65,

. . . . .

(2) Clause 45.1 (4) (b) of the Regulation is revoked and the following substituted:

(b) the insurer shall,

(i) mail or deliver the payment of the expense to the person entitled within 14 days after the insurer receives the report of the examination under section 65, or

(ii) give the person a notice in accordance with subsection (6) if the insurer refuses to pay the expense; and

(3) Subsection 45.1 (6) of the Regulation is revoked and the following substituted:

(6) If the insurer refuses to pay a benefit under this Part, it shall give the insured person notice of the reasons for the refusal within 14 days after the insurer receives the report of the examination under section 65.

20. The Regulation is amended by adding the following section:

Transitional

45.2 (1) Subsection 40 (7) and sections 45 and 45.1, as they read on February 28, 2006, continue to apply in respect of a claim for payment of an expense under section 40 if, before March 1, 2006, an insurer has given a notice to the insured person under subsection 45 (1), as it read on February 28, 2006, requiring the insured person to be assessed.

(2) Despite subsection (1), if an assessment of an insured person by a designated assessment centre cannot be conducted or completed on or after March 1, 2006 because there is no designated assessment centre that satisfies the requirements of this Part, the insurer may give the insured person a notice in writing requiring the insured person to be examined under section 65 in respect of the claim, instead of being assessed by a designated assessment centre, and the provisions of this Regulation, as they read after February 28, 2006, apply in respect of the disposition of the claim after the notice is given.

21. Subsection 47 (9) of the Regulation is amended by striking out “subsection 50 (10)” at the end and substituting “subsection 50 (6)”.

22. (1) Clause 49 (1) (a) of the Regulation is revoked.

(2) Section 49 of the Regulation is amended by adding the following subsection:

(3) In this Part,

“designated assessment centre” means an assessment centre designated before March 1, 2006 by the Superintendent under clause (1) (a), as it read before March 1, 2006.

23. The heading before section 50 and section 50 of the Regulation are revoked and the following substituted:

Examination

50. (1) The insured person may, by written notice to the insurer, elect to be examined under section 65.

(2) If an insurer receives a certificate under section 48 in respect of an expense, the insurer may give the insured person notice requiring the insured person to be examined under section 65.

(3) Despite subsections (1) and (2), an insured person shall not be examined under section 65 within 12 months after the last assessment under this section, as it read before March 1, 2006, or the last examination under section 65 relating to services referred to in section 47.

(4) If the insured person elects to be examined or the insurer requires the insured person to be examined, the insurer shall provide to the insured person 14 days notice of the examination and 14 days notice of the examination shall be considered to be reasonable notice of the examination for the purposes of subsection 65 (2).

(5) Within 14 days of receipt of the report of examination, the insurer shall give the insured person notice of the amount to be paid by the insurer to the insured person for the future provision of services referred to in section 47.

(6) The determination under subsection (5) shall be made in accordance with Form 1 and shall be based on the following hourly rates for services:

1. For care described in Part I of Form 1, $11.08 per hour.

2. For care described in Part II of Form 1, the minimum hourly wage for the period to which the payment relates, as prescribed under the Employment Standards Act, 2000.

3. For care described in Part III of Form 1, $17.72 per hour.

24. Subsection 50.1 (5) of the Regulation is revoked and the following substituted:

(5) If the insurer refuses to pay a benefit under this Part, it shall give the insured person notice of the reasons for the refusal within 14 days after the insurer receives the report of the examination under section 65.

25. The Regulation is amended by adding the following section:

Transitional

50.2 (1) Sections 50 and 50.1, as they read on February 28, 2006, continue to apply in respect of a claim for payment of an expense under section 47 if, before March 1, 2006, an insured person has given a notice to the insurer under subsection 50 (1), as it read on February 28, 2006, or the insurer has given a notice to the insured person under subsection 50 (2), as it read on February 28, 2006, for the insured person to be assessed.

(2) Despite subsection (1), if an assessment of an insured person by a designated assessment centre cannot be conducted or completed on or after March 1, 2006 because there is no designated assessment centre that satisfies the requirements of this Part, the insurer may give the insured person a notice in writing requiring the insured person to be examined under section 65 in respect of the claim, instead of being assessed by a designated assessment centre, and the provisions of this Regulation, as they read after February 28, 2006, apply in respect of the disposition of the claim after the notice is given.

26. Section 63 of the Regulation is revoked.

27. Section 64 of the Regulation is revoked.

28. Section 65 of the Regulation is amended by adding the following subsection:

(3.1) If the examination relates to a claim for attendant care benefits, the report of the examination shall include a completed Form 1.

29. (1) Clause 71.1 (b) of the Regulation is amended by striking out “45, 50 or 64” and substituting “45 or 50”.

(2) Clause 71.1 (c) of the Regulation is revoked.

30. Subsection 73 (6) of the Regulation is revoked.

31. Paragraphs 4, 5 and 13 of section 94 of the Regulation are revoked.

32. This Regulation comes into force on March 1, 2006.

 

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