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N.S. government takes parents to court over daughter’s insurance settlement

Thursday, September 18th, 2014

The parents of a teen who suffered severe brain damage in a car crash 18 years ago are trying to stop the Nova Scotia government from taking what’s left of her million-dollar insurance settlement.

Louise Misner and Byron Huntley say they need the money in order to provide extra care for their daughter and now they are battling the Nova Scotia government in court.

“We need compassion from our government,” says Misner. “I think it’s inhumane that anyone could ever want her to have any less of a life where she’s lost most of what we have.”

Their daughter, Joellan, sustained a serious brain injury in a car crash in 1996, at the age of 15. The crash also claimed two young lives after the young driver swerved to miss a dog on the road.

In the years following the crash, Joellan received a nearly $1-million settlement. Her parents say they use the money to provide extras, like therapy that isn’t available at the rehab centre where 33-year-old Joellan lives.

The provincial government filed papers in May, indicating it is going over that money.

“I think it’s kind of sad that they have to go to court and take what she needs, the funds she needs for the extra care she’s getting,” says Huntley.

“They say they’re entitled to it as a result of Joellan being in a provincial long-term care facility,” says lawyer Ray Wagner, who is representing the family against the government in court.

Joellan has been a patient at the Kings Regional Rehabilitation Centre since being discharged from hospital after the crash. According to court documents, the cost of care is about $220 a day.

The government is covering those costs, but the family uses the $2,500 it receives from Joellan’s trust fund every month to pay for extra care.

“The physiotherapy is about $2,000 a month and the OT is about $500 a month,” says Misner.

Joellan’s parents say her chest fills with fluid and her body twists because of her brain injury, and they say the extra therapy helps keep her more comfortable.

“You would think they would be happy that she has that resource instead of going down to the courthouse to file papers to take it away from her,” says Huntley.

Wagner says provincial legislation allowing government to pursue these types of settlements was passed in 2003.

The family doesn’t dispute that the province should get some money to help with care, but they don’t think the government should be awarded the entire settlement.

Huntley says he met with government representatives in 2008 to discuss the matter.

“I offered at that time to give them a percentage or a portion of her settlement to take to pay for her care and that didn’t seem to fly with them,” he says.

“What we forget is we start looking at the examination of the money, but we forget that there is an individual with a soul that exists within that body,” says Wagner.

He argues the law wasn’t in effect at the time of the car crash, and says the system that was in place at the time is the one that should apply now.

Community Services won’t comment on the case while it is before the courts, but it issued a statement to CTV News:

“Insurance settlements received as the result of accidents are typically intended to cover the cost of care and, therefore, are considered assets that will be used to help cover some of the cost of care. Once an insurance settlement has been fully utilized, the cost of care is covered by the department.”

Misner and Huntley are now divorced, but they visit her at the centre every week and welcome her home once a month.

Misner says her daughter was a bubbly, Grade 9 honour’s student who loved sports and animals and dreamed of becoming a nurse.

“What mother or father would ever want their child to live the rest of their life in that kind of pain, if her trust fund can help her have less pain and a better quality of life?”