Introduction

Brian Webster, the founder of Webster & Associates, has been practicing brain injury litigation for over 30 years. He and his litigation team have successfully represented hundreds of survivors of traumatic brain injury throughout BC and around the world.

One of the key issues for all brain injury survivors is accessing funding for care and rehabilitation. Litigation against an insured defendant is often the best avenue for accessing funds, but this is not always available. Additionally insurance policy limits may or may not be sufficient to provide enough care for the brain injury survivor. For those who may be able to litigate, it is critical to have the advice and guidance of an experienced brain injury or neuro-lawyer to ensure the most available money goes to the survivor. In other situations it may be difficult to utilize legal counsel. The purpose of this paper is to provide the reader with an overview of the different methods, through which funds might be obtained, discuss the criteria, the funds available and considerations for access.

Important Legal Disclaimer
This paper provides a general overview of broad subjects which arise from on complex legislation, legal principles, rules and policies. This paper and the PCBIA presentation provide a general overview of various benefit schemes – not legal advice. This can not be taken as legal advice pertaining to specific situation, as situations are unique. If you have questions or concerns about the applicability of this discussion, or a particular situation, you must consult a lawyer.

1. Litigation

A. Defined

• “A lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy” (Black’s law dictionary)
• “America’s favourite pastime” (internet legal joke dictionary)

Despite common misconceptions, litigation is simply a formalized process for seeking an appropriate remedy for a wrong that has been suffered. In relation to brain injury, almost all lawsuits will be brought alleging a negligent act or omission or breach of contract that resulted in the brain injury. In almost all situations, the award received will be an amount of money payable to the injured party to assist in redressing the wrong. It is important to remember that, essentially, the only remedy available through the court process is a monetary remedy.

B. Prerequisites

In British Columbia, a lawsuit or litigation is available only when an injury occurs as a result of the fault of another. By fault, we mean a negligent action, omission or breach of a promise which results in a brain injury. Legal recovery is based on the percentage of fault. For example, if an ‘award’ is for 100 dollars, the injured party would be awarded $100 dollars if the wrongdoer (tortfeaser) was fully at fault. If the guilty party is only 75% responsible for the injury, the brain injury survivor would be awarded 75 dollars. There are complications and permutations depending on the number of parties at fault (or not at fault) and issues of ‘joint and several’ liability, ‘vicarious’ liability, and ‘contributory negligence’.

• Joint and several liability means that one of a few guilty parties or tortfeasors may be required to pay more because they have ‘deeper pockets’ or more funds available.
• An example of vicarious liability is the employer who is responsible for the actions of their employee, and is therefore responsible for paying their employee’s fault.
• Contributory negligence means the plaintiff contributed to the incident and the tort feasor (wrong-doer) is not responsible for paying damages that arise from the mistakes or negligence of the plaintiff (i.e. not wearing a seatbelt). These issues, in BC, are complicated by the Negligence Act, [RSBC 1996] c.43 and cases which have considered this statute.

To bring a lawsuit in British Columbia, the action must have occurred in British Columbia or be substantially connected to British Columbia. Lawsuits are commenced by filing and serving proceedings (a Writ of Summons & Statement of Claim). Lawsuits can be settled anytime from prior to the commencement of proceedings through the Supreme Court of British Columbia, or Court of Appeal or Supreme Court of Canada.

C. Time Limits

The time limit for commencing an action for personal injury in BC is two years from when the injured party knew or should have known about his injury. In motor vehicle collisions, this is two years from when it happened (with some more exceptions). There are much less obvious situations, i.e. medical negligence where the injury is not discovered immediately. There are also issues of the “ultimate limitations” which arise even if the two year limitation is not expired. There are stricter limitations to consider when the action lies against government bodies (i.e. municipalities, the province, etc.) which may require notice with within months of the incident. When it comes to deciding about litigation the best rule is – the sooner the better. It is therefore important that the injured party or family member consult with a lawyer at the earliest possible opportunity to ensure that limitations do not pass and evidence is not lost.

Limitation periods often commence after the age of majority (19 in BC) and can be started earlier. Likewise limitation periods can be extended when someone is not competent, as may be the case with serious brain injury. The exact determination of when these periods are running and not running is often difficult. Again, legal advice should be sought.

D. Adjudication

In civil actions, the burden of proof rests with the party bringing the lawsuit. In other words, the TBI survivor must prove that the injury and the losses they have suffered are as a result of the wrong doing of the defendants.

The standard of proof required in civil actions (as opposed to criminal actions) is the “balance of probabilities” test, which has been described as:

• “a reasonable degree of probability but not so high as is required in a criminal case.” If the court says “we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.” – Lord Denning, England
• “but for the tortious act of the defendants, the plaintiff would not have been injured” – SCC (Snell v. Farrell)
• such a preponderance of evidence as to shew that the conclusion he seeks to establish is substantially the most probable of the possible views of the facts – SCC (Clark v. King)

The burden of proving that standard is on the plaintiff or injured party. In other words, the brain injury survivor has the onus of proving the loss he has suffered. This is why much litigation involves the search for objective evidence of brain injury and how the brain injury has changed the survivor’s life.

The court process can be lengthy. There are significant gaps allowed from the time of issuing proceedings that allow for the collection of documents and other evidence. The court itself books two years in advance for longer trials, which is the norm in traumatic brain injury cases.

E. Benefit Entitlement

There are four very basic categories of compensation most commonly sought in cases of traumatic brain injury:

1. non-pecuniary damages
2. damages for loss of earnings (past and future)
3. costs of cost of care (past & future)
4. special damages (i.e. specific expenses, or services provided)

1) Non-pecuniary damages in Canada are capped at $100,000.00 plus inflation from 1977. This arises from the “trilogy” of decisions in the Supreme Court of Canada. With inflation, the maximum non-pecuniary damages is approximately $300,000 today. This amount is awarded in cases where an injury has completely disabled a person from enjoying their life, for example, situations with quadriplegia, paraplegia and severe traumatic brain injury.

2) Earnings and earning capacity: pertain to the losses suffered by the individual. Decisions are made with respect to an evaluation of the person’s potential, utilizing their past history and other factors in determining how much money they would have earned to the date of trial, and what their perspective and likely earnings for the remainder of their life would have been. Numerous factors are considered as contingencies.

3) Care Costs: pertain to the care costs which will be needed and have been needed to sustain the traumatic brain injury survivor. Evidence will come from who has provided on-going rehabilitation (care providers) and family members who participate or provide services.

In general, the rule in respect of benefit entitlement in litigation is, if you can prove the loss, you can receive compensation. Issues of proof, therefore, can be complicated but theoretical entitlement is based on all the needs of the individual. A holistic, life long and considered assessment of the survivor’s long term needs are very important and need to be provided by a skilled expert familiar with brain injury.

F. Rehabilitation Entitlement

In British Columbia there are rehabilitation entitlements which are legislated in situations of motor-vehicle incidents for those who are “insured”. An insured is a person who owns an insured vehicle, or is a member of their household, or who has a driver’s certificate. These (part 7) benefits are available regardless of fault, and immediately following injury. The benefits allowed are specific and prescribed rehabilitative and income replacement benefits which are quite limited, especially in the most serious cases. The rules governing administration are contained in government legislation; The British Columbia Insurance Motor Vehicle Act and Regulations,1996, R.S.B.C. c.38.

In addition to Part 7 benefits, a survivor may receive benefits from private insurance or government schemes. Experienced traumatic brain injury lawyers will ensure that all the rehabilitation needs of the individual are taken care of, and may bear the risk of paying those expenses up front.

G. Decision-Making Process

The decision to commence litigation depends on the circumstances. Litigation with respect to motor-vehicle collisions is common and well known and the risks can be weighed. The issue of costs, which are awarded to the successful party plays into the process. Costs are calculated differently in different jurisdictions (provincially and internationally), which impacts how litigation proceeds.

2. Worker’s Compensation Board

A. Definition

The Workers’ Compensation Board of British Columbia (WCB) is the legislatively created body that administers the Workers Compensation Act, RSBC 1996, c.492 (the “Act”. [ http://www.qp.gov.bc.ca/statreg/stat/W/96492_00.htm ] The Act permits the WCB to assist injured or disabled workers and their dependants, plus, set and enforce occupational health and safety standards, assess employers and collect money to operate the WCB. [WCB website: http://www.worksafebc.com ]

B. Pre-requisites for Entitlement

The WCB provides assistance when certain tests are met. These tests are outlined in the legislation and policies of the WCB. There is a certain amount of discretion that may be utilized in specific situations.

1. The primary criteria for eligibility is being a “worker”. A “worker” is usually someone employed in BC, but there are many subtleties defined in section 1.
2. The other essential criteria is that the worker suffers “personal injury”, “Mental Stress”, “Occupational disease” or “loss of hearing” or death related to their employment.

The WCB generally covers the employees of all British Columbia employers, mostly, but not always in BC. All the terms, ‘Employers’, ‘workers’ & during employment are defined terms. Generally if you think you are a ‘worker’ you probably are and the WCB will treat you as such. If you are receiving a response that pertains meeting specific criteria, you need specific advice.

In situations where the injury was caused by a non-worker (i.e. the courier driver is struck by a non-working driver) the worker may elect whether to receive compensation from the WCB or seek his or her own remedy against the tortfeasor). See section on elections.

C. Time Limits

In general, a worker is required to report an injury, “as soon as practicable”. The compensation application must be made within one year. However, if the Board is satisfied that there are “special circumstances”, which precluded the application within one year, the application may be accepted later. The longer the delay, the more difficult, and compensation may not be payable from the date of incident. (An example is the case of a brain tumour in a fire fighter, which may not have developed initially or been recognized as relating to an employment injury for some time.)

In circumstances where one is not certain if a WCB application will be necessary, it is always best to file a ‘provisional’ WCB application. This can preserve the worker (or potential worker) rights without having to decide if an application should be made.

D. Burden of Proof and Adjudication

The burden of proof in the WCB system is lower than the civil balance of probabilities. There are multiple systems of requirements for burden of proof within the WCB system.

#	Decision Maker	BURDEN OF PROOF
1.	WCB officer	Decides the initial application based on his or her interpretation of the evidence & regulations.
2.	Request a decision letter.	The decision letter sets out the decision and should explain the reasons for the decision.
3.	Decision Review	– 90 days to request that the decision be reviewed. – Submit Request for review form- Review performed by review officer by i) reading file and additional written submissions ii) requesting additional information from outside source (i.e. doctor or ?) iii) hearing where evidence presented- 150 days for decision
4.	Workers Compensation Appeal Tribunal	Final level for most WCB claim matters. 30 days from date of review division decisions to file notice of appeal to appeal Review division decision. Also the level of appeal for re-opening claims- disclosure of the file usually occurs WCAT conducts oral hearing or accepts written submissions. WCAT can gather additional evidence Usually decides within 180 days WCAT must apply the policies of the WCB Board of Directors relevant to your appeal. WCAT must follow its own ‘precedent’ decisions. If the evidence is evenly balanced on a compensation issue, WCAT must decide the issue in favour of the worker. On other issues, WCAT will make its decision on a balance of probabilities. www.wcat.bc.ca
5.	Judicial Review	Appeal to the Court in certain circumstances

F. Procedural Issues/Costs

The WCB has a stepped approach that becomes more complicated and evidence driven as one progresses through the system. The initial application is simply reviewed and decided by the WCB officer. The initial appeal goes through the first person and is simply done by letter to the adjudicator requesting an appeal of all or part of the decision that had been rendered.

Ultimately, a decision may be rendered upon judicial review. This is a process whereby the Supreme Court of British Columbia will review a medical or other decision of the WCB Appeal Panel. At this point, the rules respecting the introduction of evidence are highly circumscribed, the Court mostly reviews decisions in respect of their procedural fairness, not the substance of the decision themselves.

Throughout this process, individuals can represent themselves, utilize the Workers’ Advisor (www.labour.gov.bc.ca/wab ), the advocacy provided through unions, private counsel or even friends to advocate on their behalf.

G. Benefit Entitlement (Compensation & Rehabilitive)

The WCB has a number of different benefit schemes including:

• Financial compensation: provided for a worker who is disabled from his or her employment either temporarily or permanently. The system for determining the entitlement is based on past income history, although there are alternate calculation methodologies which are allowable in certain circumstances (i.e. casual workers, apprentice workers, etc) where the immediate past work history does not reflect the average or historical earnings of the worker. In the new system, compensation only goes to age 65, with some retirement allowance for those on long term disability.
• Pensions: in cases of serious, permanent disability, the WCB will assess the degree of disability in terms of a percentage. The percentage translates into a amount related to the worker’s history. In cases of full disability (over 100%), there is a minimum amount (approx $1300) that is given as a pension on a monthly basis. At times, pensions can be commuted to lump sums based on applications.
• Medical Benefits: can be applied for in the same manner as financial benefits, the categories of benefits are not closed, but they typically involve health care benefits of medical, surgical, hospital, nursing and other benefits the Board “may consider reasonably necessary”. Because the medical benefits are ‘permissive’, different benefits can be provided at different times by different officers. For example, provision of Committeeship in cases of serious injury.
• The use of a familiar advocate can go a long way in massaging the system. Medical benefits may be provided for life and there is also a process of appeals and determinations, mostly based on medical evidence and the opinion of physicians.

Benefits are allowed from the date of the injury, and often when decisions are appealed successfully there will be a back pay of allowable benefits.

H. Decision Making Process

The different levels of decision making are described above. Unfortunately the early levels of decision making do not have specific standards for considering evidence. Each officer uses his or her judgment and discretion. This leads to variation in application of the rules which can be influenced by the advocacy skills of the workers and the fund of knowledge of the officers.

Unlike litigation, reliance upon experts can be arbitrary. In the litigation context there is a process of proving expertise. WCB officers may simply rely upon those they trust.

Other Important Issues – Election:

For the most part, when a worker (broadly defined) is injured, he or she must fall within and obey the WCB legislation. The exception is the election process where a worker is injured by a “non-worker” [recall example, when a courier driver is struck by a non-worker]. The worker has a choice of electing to either receive WCB benefits or commence legal action in the tort system.

This election is a complicated process governed by legislative parameters. For example, when workers elect to choose to start their own litigation, they forgo all ongoing Part 7 benefits from ICBC (i.e. for rehabilitation or wage replacement) and must supply their own until the end of the claim. In other words, they must fund all their own rehabilitation and wage-loss and they are not entitled to reimbursement until they finalize the claim. This is done because the worker has the ability to collect ongoing wage-loss and medical benefits from WCB but chose not to do so.

As well, due to specific legislation, the choice to stay within the WCB system does not preclude legal action and recovery of damages caused by a non-worker. Where an action lies against a non-worker or employer, the WCB may bring an action. The action is brought in the worker’s name but by the WCB. This litigation is brought for the benefit of the WCB and first repays its medical and wage replacement expenses. If the WCB is able to recover funds which exceed their financial interest the net proceeds are provided to the worker.

The “election” decision is not an easy one to make, but in cases of severe injury, where the injured party has rehabilitation and wage-loss needs (i.e. tbi), the choice to go WCB is often the only choice. The worker has the benefit of receiving wage replacement and all medical benefits. It is not necessary to prove ‘fault’ and there are no pre-set limits as their may be in the case of an insurance policy. To the extent that WCB’s legal action is successful, the worker enjoys the benefits. The time limit for making an election is 3 months.

3. Criminal Injuries Compensation (or Crime Victim Assistance Program)

A. Definition

The Crime Victim Assistance Program is available for personal injury or death resulting from a crime that occurred in the province of British Columbia.

There are various types of financial assistance and benefits that victims and immediate family members of an injured or a deceased victim and some witnesses may be eligible for. The program applies when other sources of benefits, excluding social assistance, have been exhausted. Police charges or prosecution are not necessarily required for entitlement.

The Crime Victim Assistance program is administered by the Victims Services division of the Ministry of Public Safety and Solicitor General. The program replaced the criminal injury compensation program (on June 30, 2002), previously operated by the Workers’ Compensation Board.

Legislation governing the program is contained in the Crime Victim Assistance Act, and the Crime Victim Assistance (General) Regulation.

The programs are intended to provide assistance to victims of violent crime to aid in their recovery and ongoing security. (See www.pssg.gov.bc.ca/victim_services for more information.)

B. Pre-Requisites for Entitlement

The program does not apply to an offence or event that occurred on or before July1, 1972 (except in rare circumstances). It does not apply to cases involving the operation of a motor-vehicle (unless it involved an assault using a motor vehicle) or in cases where injury or death occurs as a result of a person’s employment. These cases are dealt with in litigation or by WCB as discussed above.

Benefits may be available to the following persons under the Crime Victim Assistance Program.

1. If a person is injured as a direct result of a prescribed offence committed in British Columbia or an event in British Columbia. An event includes an event in which a person was lawfully arresting or attempting arrest a person or assisting in an attempt to arrest a person in respect of a criminal offence or where a person was lawfully preventing or attempting to prevent an offence under the criminal code.
2. An immediate family member who 1) experiences economic loss or psychological harm as a result of a death or injury of a victim or 2) is a minor child of a deceased victim.
3. A person who has a strong emotional attachment to the victim who witnessed in close proximity an offence that causes a life-threatening injury or death to the victim or the immediate aftermath of a prescribed offence that causes the death of a victim and suffers psychological harm that is diagnosed by a professional as a result of witnessing the event.

In determining eligibility for benefits under the program,

a. information documents, statements, reports, books and papers or other evidence
b. information concerning Alternative Sources of Benefits
c. medical assessment
d. report of medical practitioner or expert concerning the applicant
e. verification of information provided by the applicant
f. the police force to provide copies of its police file regarding the event.

If the applicant fails to comply with one of the above requirements, the applicant victim, family member or witness applicant may be found ineligible until any outstanding requirements are satisfied. The application forms may be obtained at the Victim Services Office or on their website: www.pssg.gov.bc.ca/victim_services.

C. Time Limits

An application for benefits under the program must be made within one year from the date of the prescribed offence or the event to which it relates. If the victim or immediate family member or witness is a person who has not reached 19 years of age, the time limit is extended until the date that is one year after the date the person reaches 19 years of age.

Exceptions to the one year limitation include victims of an offence of sexual misconduct or a sexual assault. Furthermore, the director has the discretion to extend the time limit for making an application under special circumstances. For example, if the victim is not competent as a result of injuries, this may provide an exception allowing extension of the time limit.

D. Adjudication, Decision Making and Burden of Proof

After the victim, family member or witness has completed the requisite application form and provided information and verification as required, the decision is made by an adjudicator with respect to benefit entitlement.

The adjudicator must satisfy himself that the victim or other eligible party suffered injury as a result of the event claimed and did not contribute to the event itself. The applicant is entitled to receive written notice of the decision and reasons for the decision.

The applicant may request that the director reconsider the decision. A request for reconsideration must be made in writing and delivered to the director within 60 days from the date the Notice of Decision was delivered. Notice of the initial decision must be delivered to the applicant in writing with reasons for the decision.

There is no judicial review allowed except on questions of law or jurisdiction. The legal test is a civil burden of proof or balance or probabilities. Benefits themselves must be reasonable and necessary as well as economically reasonable.

E. Procedural Issues

In terms of reasonable time expectations for a decision from an adjudicator, there are two different streams, one expedited and one for all other cases. The expedited stream is utilized in cases involving:

• children
• recent events
• fatalities
• where the victim is in immediate need of assistance and there are no other benefits
• financial hardship
• instances where there is a protection issue

Expedited cases can be adjudicated from one day to two or three weeks. For the balance of non-expedited cases the target for a decision is 6 months, including all of the information gathering process.

There are several adjudicators who make the individual decisions; the test is the civil balance of probabilities. There is a separate regulation for income support and vocational services that pertains to income and wage loss. Generally, the Victim Assistance Program is a program of last resort with the exception of social assistance. If benefits from an alternate source are paid as a result of the incident, the victim will be required to pay back the amount of benefits paid from other benefits received.

Criminal charges by the Police or Crown are not always necessary for entitlement to benefits. This is for the reason that often the suspect is not identified. Furthermore, the director may find an offence has occurred where the police or prosecutor has not. It is important that the applicant cooperate with the process and provide statements, if required, to the police. Even if the charges are not laid or a perpetrator is not found, this does not necessarily preclude compensation under the scheme.

If an adjudicator awards a benefit to an adult for whom legal representation made an application, any benefits provided as payment must be paid in trust to that legal representative. Further, if the director has concerns about the ability of a person to manage a benefit provided as a payment, the director may pay the benefit to the Public Guardian and Trustee, in trust, for the victim or eligible beneficiary.

F. Benefit Entitlement and Rehabilitation Benefits

Available benefits include:

1. Medical or dental or expenses
2. Prescription drug expenses
3. Disability aids
4. Counselling services or expenses
5. Vocational services or expenses
6. Protective measures, services or expenses
7. Repair or replacement of damaged or destroyed personal property
8. home modification or acquisition
9. Homemaker, childcare or personal care services or expenses
10. Maintenance for a child born as a result of the prescribed offence
11. Income support
12. Lost earning capacity
13. Transportation and related expenses

The detailed provisions concerning income support, vocational assistance and lost earning capacity benefits are outlined in the Crime Victim Assistance (Income Support and Vocational Services or Expenses Benefits) Regulations. These benefits include services and expenses that are reasonable and necessary to assist in improving the victim’s employability. They may include retraining and further education. These benefits do not apply to victims that are retired or unemployed at the time of the injury. The victim may receive income support for short term, long term and lost capacity up to the equivalent of 40 hours a week paid employment.

4. Disability Insurance

A. Definitions

Disability insurance is insurance that may provide a wide spectrum of rehabilitation, medical coverage, income loss and other benefits in the event of personal injury.

Disability insurance comes from a variety of sources. It can be privately purchased or negotiated as part of a collective agreement with a union or employer. The terms of the agreement will be outlined in a contractual agreement and/or statement of benefits. The contract will have a number of sections that apply to the issue of benefits. Information may be contained on its own or within a contract or collective agreement. Many people have a booklet which describe the benefits, but that is not the entire contract. Always obtain the entire contract, it may conflict with the booklet. The additional documents could include the Policy, Supplementary Information, Statement of Benefits, Policy for Administration of Benefits, Certificate of Insurance etc. that also form part of the contract for insurance benefits. These documents provide important information about time limits and definitions of who is covered, as examples.

In cases of injury arising from the use of a motor vehicle ICBC, a crown corporation, has a duty to provide certain benefits to British Columbia ‘insureds’ (discussed above). In cases of litigation, disability insurance may or may not be a deductable benefit.

B. Prerequisites for Entitlement

The contractual terms for disability insurance vary from contract to contract. Some insurance companies require medical information, verification and possibly assessment before they will make an agreement with you for a disability insurance contract in the event of disease or illness. Other plans or policies may be automatic for employees working for a company that holds a group policy for its employees.

For those who have access to benefits under a contract of disability insurance there are common prerequisites for entitlement in the event of illness or injury. These prerequisites vary with the agreement. Examples for oft found terms include requirements that the applicant:

• has worked at paid employment for a specified period of time before the injury
• is disabled from his/her current occupation or is disabled from any occupation
• the injury was not caused by criminal fault of the injured party (or insurance is voidable)

Applications for benefits under these contracts and government schemes vary. Most often medical records and one or more medical assessments by an expert concerning the nature of the injury are required.

C. Time Limits

There may be a specific time limit that must pass before eligibility. An example is that an employee must have worked for at least three months before she can claim under the disability policy.

Assuming that any “without injury” time limits have passed, the injured applicant is commonly required to advise of the possibility or existence of a claim at the earliest reasonable time or within a specified time after injury specified in the contract.

D. Adjudication, decision making and burden of proof

The decision to pay out benefits is often made by an adjuster employed by the insurance company. The adjuster will usually collect the medical information and request certain assessments and information to process the claim and make a decision. Often the adjuster is supervised by a manager, who oversees the decision and may become involved in more complicated or costly cases.

E. Procedural Issues, What is needed to obtain

The procedures vary widely from contract to contract, plan to plan. The starting point is usually completing a written application form and providing an authorization for the release of confidential medical information relating to the applicants condition.

Medical examinations and reports from experts are often required. Time limits for processing vary with the insurer. For larger policies, there is usually a “consultant” type company in addition to the insurer, which has been hired by the insurance company to administer the policy.

F. Benefit/Rehabilitation Entitlement

Typically, insurance benefits provide coverage for the following types of items:

• Medical, surgical, and diagnostic services
• Hospital
• Funeral
• Rehabilitation: physiotherapy, chiropractic etc
• Retraining
• Dental
• Income continuance (short term)
• Income continuance (long term)
• dependants (sometimes receive benefits)

Disability insurance contracts can provide for short and long term benefits depending on the nature of the contract and length of injury. Definitions may change when a beneficiary moves from short term to long term disability. For example, the percentage of income replacement may change and the applicant may have to give evidence of being unable to work at any occupation, not only her occupation. This depends upon the type of policy. There may also be rules in the contract concerning the effects of other income on the applicant’s disability status.

The contract of insurance will often require the applicant to apply for and exhaust other sources of funding, such as CPP, MSP or sick leave before certain benefits are paid or topped up. In many cases benefits can be paid retroactively, especially when a denial is overturned.

For persons with long term disability needs, the insurance company may consider paying out a lump sum in lieu of continued monthly or periodic payments, for life, or until a specified age (say 65) calculated at a present value. The applicant may then take these funds and invest them.

5. Government Assistance (Provincial and Federal)

There are Federal and Provincial government schemes that provide benefits for persons with physical or mental disabilities when certain criteria are met. The Federal scheme is the Canadian Pension Plan. It is based on medical need and depends on the history of monies contributed by the applicant through the history of their employment.

The Employment and Assistance for Persons with Disabilities Act is a provincial scheme that may benefit persons with disabilities. It is based solely on financial need utilizing an income/asset test for eligibility.

Canadian Pension Plan

The Canadian Pension Plan (CPP) disability benefit is available to people who have made enough contributions to the CPP, and whose disability prevents them from working at any job on a regular basis. The disability must be long lasting or likely to result in death.

The CPP disability benefit is a monthly payment. It is available to people who contributed recently to the CPP while they worked and then became unable to work at any job on a regular basis because of a disability.

The term “disability” under CPP means the disability is both “severe” and “prolonged”, and makes the person unable to work at any job on a regular basis. A disability is prolonged when it is expected to last at least one year or is likely to result on death.

A. What is needed to obtain the benefits

The Application for Disability Benefits is available online or a package can be mailed. A written application must be completed and submitted. The Application package includes a questionnaire, medical report to be completed by doctor, consent to obtain further medical information and child rearing drop out provision. See discussion below regarding provincial legislation on importance of correctly completing medical forms.

Applications should be made when the person is diagnosed with a serious long-term or terminal medical condition that prevents him or her from working regularly. However, there are late applicant provisions that will allow the person benefits even if they have not worked in four of the last six years if the person is considered to be continuously severely disabled from the date of stopping work until the time of application.

If the person’s disability (as defined above) began after December 31, 1997, the applicant must have contributed to the CPP in four of the last six years to a minimum of approximately $4000 in 2004.

B. Procedure

Applications must be made in writing. Forms are located at the “Forms” website: http://www.100.hrdc.gc.ca/e_formshome.shtml. If the application for CPP disability benefit is not granted, there are three opportunities to have the application reconsidered. There are time limits for requests for reconsideration. The first must be made within 90 days. Specific rules and procedures for reconsideration are outlined in detail on the government website at: www.sdc.gc.ca/en/isp/cpp/review.shtml. After Reconsiderations are exhausted one may apply for Judicial Review by the Federal Court of Appeal. There is a 30 day time limit for filing this application.

The CPP disability benefits are administered by Human Resource Development Canada (HRDC), a federal government department. HRDC will occasionally review the health and work status of people receiving a CPP disability benefit.

C. Benefit, Rehabilitation Entitlement

The CPP disability benefit is taxable. The Plan does not pay short-term benefits, or partial disability benefits. The benefit is not guaranteed for life. The benefits will stop if the beneficiaries condition improves to the point where he or she is able to work at any job on a regular basis, or if the person turns 65 or dies.

The benefit includes a fixed amount that every one receives in the amount of $382.17 a month (for 2004) plus an amount based on how much the person contributed to the CPP during his or her entire working career. Payments start four months after the date HRDC determines the person was found to be disabled under the CPP rules. Once the person has applied and is found to be entitled to CPP benefits, he or she may be entitled to benefits dating back a maximum of one year from the date of application. Benefits are also available for dependent children of parents who are receiving a CPP disability benefit.

Persons receiving disabilities can continue to receive disabilities while doing the following:

• Volunteer work
• Going to school
• Taking part in a re-training program.

The federal government also offers short term illness benefits under Employment Insurance (part of human Resources and Skill Development Canada) and disability benefits from Veterans Affairs Canada.

Provincial Assistance

(The Employment and Assistance for Persons with Disabilities Act )

Under this British Columbia provincial legislation, a person with disabilities (PWD) is defined as a person who is at least 18 years of age with a severe physical or mental impairment that is expected to continue for at least two years. For those persons under the age of 18, the needs of the family unit with a disabled child are considered.

An application is provided only to those applicants who have been assessed as financially eligible for disability assistance. The income/asset test is essentially a means test. The applicant must show that he or she does not have income that exceeds the cost of minimal basic living expenses.

Financial eligibility is also affected by any assets the applicant may have. A family unit is not eligible for disability assistance if the sole applicant has no dependent children and has assets with a total value of more than $3,000 or an applicant has one or more dependants and the family unit has assets with a total value of more than $5,000.

There is a list of exemptions as to what is considered an asset under Part 2 of the Regulations. Examples include: one motor vehicle generally used for day to day transportation costs and a family unit’s place of residence and assets held in trust for a person with disabilities. Trusts can be set up before or after becoming a BC Employment and Assistance recipient. There are specific rules for how trust monies can be spent to ensure they do not negatively affect disability income eligibility. Information on trust requirements is located in the Disability Assistance and Trust Manuel at http://www.mhr.gov.bc.ca/PUBLICAT/bcea/trusts.htm.

Once financial eligibility is established, the applicant must show he or she is significantly restricted in his or her ability to perform daily living activities and requires assistance with daily living activities from another person, an assistive device or an assistance animal. This Act is intended to cover those individuals with mental health disorders and persons with episodic illnesses that restrict activities of daily living continuously or periodically for extended periods.

A. Procedure

Applicants who are not yet 18 years of age may submit their application up to 4 months prior to their 18th birthday, plus applicants eligible for CPP must apply for benefits under the Canadian Pension Plan.

If an individual does not require provincial assistance (ie because of employment) they keep their designation and maintain medical assistance. Subsequent reapplication for disability status is not necessary.

The costs of the medical assessments required to make the application are covered as part of the application process. This information is located on the back page of the application itself. Citizenship and other technical applicant requirements are outlined under Part 2 of the Act entitled “Eligibility for Disability Assistance”. See www.mhr.gov.bc.ca/PUBLICA/VOL1/Part3/3-5.htm.

B. What is needed to obtain benefits

Application forms are available only at the Ministry of Human Resources Employment and Assistance centres. Forms can be downloaded from www.mhr.gov.bc.ca .

The forms can be complicated and difficult to complete for the individually disabled applicant. The B.C. Coalition for Persons with Disabilities and other organizations provide valuable support for persons attempting to complete the forms. The BC Coalitions website is: http://www.bccpd.bc.ca/. The Coalition also has weekly workshops to give persons with disabilities information on how to complete the forms.

The application forms have three sections to be completed. The first part is filled out by the applicant, the second by the family doctor and the third by an additional medical or quasi-medical expert. It is often useful to guide the doctor by providing important medical and other background information and material to assist in completing a comprehensive report. Drafting outlines for the doctors to follow in their reports can be of great assistance.

In many cases of persons with disabilities, including brain injury, it is the combination of factors that together make the person in need of assistance. It is therefore critical that all aspects of the disability: emotional, psychological, physical, cognitive, functional etc. be addressed and accounted for in the medical and assessment portions of the application. There is a lot of repetition in the applications across sections that must be filled out and elaborated on to ensure a successful result.

To achieve the comprehensive reporting required in the final part of the application, it is often valuable to have the assistance of a social worker or occupational therapist to assess the applicant. The social worker can often provide greater information and comment on aspects of the disability that the treating or assessing GP or psychiatrist, for example may not provide. Psycho-social components of the disability are important. If, for example, the disabled person is withdrawn, socially isolated, has difficulty initiating or following through with tasks, the social worker will be able to include these important facts in his/her report. Essentially, the medical information must support a level of severity, restriction of activities of daily living and a need for assistance with those activities (physical and social) for a successful application.

C. Benefit/Rehabilitation entitlement

As stated above, there are specific income and asset restrictions outlined in the Regulations that may preclude an applicant from obtaining economic assistance and therefore accessing the financial and medical benefits provided for under the Act.

For those who are eligible, there may be benefits for a top up of monies already received by the disabled person from the Canadian Pension Plan, for example. For many persons, the most valuable benefit from the provincial scheme comes from the medical benefits. These include:

• Dental
• Optical
• Medical Equipment

Other benefits and supplements include:

• Education costs
• Day care costs
• Moving
• Travel
• Training
• Clothing
• Bus pass

Additionally, the province may also provide hardship assistance for persons who are waiting for benefits to which they are entitled because of special outside circumstances.