When children are injured in motor vehicle accidents, their injuries may prevent them from completing their education and thereafter obtaining suitable employment. The Statutory Accident Benefit Schedules (SABS) in force in Ontario since June 1990 all provide for payment of benefits to compensate children whose lives are changed in this way.
The OMPP SABS (accidents occurring between June 22, 1990 and December 31, 1993) provide for payment of a weekly benefit during the period in which the child suffers a substantial inability to perform the essential tasks in which he or she would normally engage. The benefit amount is $185.00 per week and is payable for life. This benefit is only payable to a person who was not earning an income at the time of the accident. Also, a person must attain the age of 16 before being eligible to receive the benefit.
Very young children who were injured in accidents in the early 1990’s are only now turning 16 and becoming eligible for receipt of this benefit. Therefore, those providing care and/or treatment to such children should be aware of this provision in the original OMPP SABS.
Children injured in accidents occurring after December, 31, 1993, but before November 1, 1996, are entitled to benefits governed by the provisions of the Bill 164 SABS. Bill 164 specifically included “education disability benefits” which included weekly benefit payments and lump sum payments. Just like the OMPP SABS, entitlement to weekly benefits commences at age 16. The weekly benefits are equal to one half of the net average weekly Ontario industrial wage. These benefits are paid if the child suffers a “substantial inability” to continue his or her education.
In Zehr v Canadian General, an arbitrator held that a substantial inability to continue with an education can occur even though the child returns to school. In the Zehr case, the child was 17 years old at the time of the accident and had just completed Grade 12 with an A average. He participated in a variety of extracurricular activities and his goal was to complete Grade 13 and attend university to study Business and Finance. Post-accident, he did return to school and was able to qualify for entrance to university, but in university his average fell into the C and D range. He was not able to engage in extracurricular activities and had to be given extra time to complete tests and examinations. The arbitrator found that there was simply no reasonable comparison between this child’s pre-accident and postaccident school activities and therefore held that he was entitled to a weekly education benefit, even though he was attending school.
After a child receives a weekly education benefit for two years, it is converted into a weekly loss of earning capacity benefit. Again, this benefit is based upon the average Ontario industrial wage. It increases by 5% every two years to a maximum of 90% of the net average Ontario industrial wage. At age 65, these benefits are adjusted and a pension is paid equal to 70% of the benefit being received at age 65.
In addition to weekly benefits, lump sum benefits are also provided to a child if he or she is unable to attend or successfully complete a year of education. The amount of the benefit increases with the level of education (elementary/secondary/post-secondary) and, while all missed years prior to age 16 are subject to a benefit, only one benefit payment is paid after a child reaches age 16, no matter how many years of school may be missed.
In the case of Rich v Jevco Insurance, the child had completed Grade 10 and was 17 years old when the accident occurred. He returned to school but his marks dropped and he was unable to pass all of his courses. He transferred to a technical high school where again he was unable to pass all of his courses. The insurer argued that because the child was able to pass more than half of his courses, he had successfully completed his year and was not entitled to a lump sum benefit. The arbitrator disagreed and found that “successful completion” of school meant passing a similar number of courses after the accident as compared to before the accident.
With the passage of the Bill 59 SABS (pertaining to accidents occurring on or after November 1, 1996) education disability benefits (weekly and lump sum) were eliminated. With respect to weekly benefits, children are once again being treated as other “non-earners”. Again, non-earner benefits commence only once a child reaches the age of 16. The benefit is paid if the child suffers an impairment that continuously prevents him/her from engaging in substantially all of the activities in which he/she ordinarily engaged before the accident. Depending on the age of the child and the time that has passed since the accident, the benefit would either be $320.00 a week or would start at $185.00 per week and then be increased to $320.00 per week. The benefit is payable until age 65 at which point an adjustment to 70% of the benefit amount is made and paid as a lifetime pension. While no lump sum education disability benefits are payable under Bill 59, “lost educational expenses” (lost cost of tuition, books, room and board) up to a maximum of $15,000.00 will be reimbursed, if the expenses were incurred before the child’s accident.
In all cases, it is important to remember that, even though a child may not be in school or working at the time of an accident, benefits will be available to that child if he or she cannot obtain an appropriate education and, thereafter, obtain appropriate employment. Unfortunately, the level of the benefits are fixed under the SABS and do not take into account, and properly replace, the true lost future earning potential of many injured children.