Family Members Sustain Economic Losses in Providing Attendant Care

Author(s): David F. MacDonald, Stacey L. Stevens

October 31, 2012

In the Fall 2005, Volume 6, 3rd Issue of the Accident Benefit Reporter, the writers addressed the topic, “Attendant Care Benefits under Bill 198: Who, What, When, Where and How”. The substance of the article was to suggest that family members were entitled to attendant care in most instances where they took time away from other activities that had economic value in order to care for their seriously injured family member.

A second article entitled, “Attendant Care Incurred under the September 1, 2010 SABS” also appeared in the November 2011, Volume 12, 2nd Issue of the Accident Benefit Reporter, authored by this writer. In this article, we discussed the prerequisite elements to receiving attendant care, the meaning of “occupation” and described various “economic losses”, which occur when a family member must take time from their other pursuits in order to provide attendant care to the injured family member.

As it relates to family members who provide attendant care, the applicable section of the SABS reads as follows:

“3 (7)(c) an aide or attendant for a person includes a family member or friendwho acts as the person’s aide or attendant, even if the family member or friend does not possess any special qualifications.

Followed by:

“3(7)(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person [injured person] has received the goods or services [attendant care] to which the expense relates, (ii) the injured person has paid the attendant care, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services [attendant care provider],”

(A) did so in the course of his or her regular occupation or profession, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

We predicted in our “Attendant Care Incurred” under the September 1, 2010 SABS article that:

“Courts will likely accept that the phrase “an economic loss” as it has no modifiers nor qualifications, will be interpreted broadly, in favour of the accident victim so that a modest economic loss will qualify and entitle the care provider for the injured person to receive payment for the full value of the attendant care which he/she provides as determined using the Form 1 and reflecting the amount of time for which services have been provided with attendant care provider.”

Thankfully, the Courts and Arbitrators have been called upon since our article appeared, to consider what was an “economic loss”, in light of the definition of “incurred” expenses in Section 3 (7) (e) of the SABS stated above.

The decision of Justice T. D. Ray, of the Ontario Superior Court of Justice in Henryv. Gore Mutual Insurance Company, issued June 27, 2012, is in line with the interpretations that we have provided to the new SABS provisions in our previous attendant care articles.

In that case, the Applicant’s mother took a leave of absence from her full-time employment, working forty (40) hours per week with a salary of $2,100.00 per month, in order to provide care for her son. The Form 1 assessment of attendant care was assessed above the $6,000.00 maximum at $9,500.00 per month.

However, Gore took the position that if a service provider could show that she had sustained an “economic loss”, then the expense payable to the Applicant would be limited to an amount, which indemnifies her “to the extent of their (her) financial loss.On that interpretation, Gore proposed to pay her for providing eight (8) hours of care per day notwithstanding the need for twentyfour (24) hours of care.

In writing his decision, Justice Ray properly noted that in 1994, attendant care benefits were expanded to include a payment to family members, and in 2002 the benefit was clarified in the decision F. (L) and State Farm, which was an Arbitration where the writer, David F. MacDonald, acted for the Applicant. In that decision, the Arbitrator clarified that the actual payment by the insured person to a family member for the attendant care services provided was not a precondition to payment by the insurer.

Considering the post-September 2010 SABS, Justice Ray properly noted that “economic loss” was not defined in any regulation. He notes that:

“If the amount, as opposed to the fact of the economic loss were intended to be relevant, then one would expect the regulations to be of assistance in calculating the amount, since economic loss has been defined in very broad terms in claims for compensation in tort law cases…This omission implies that no such calculation is relevant beyond a finding that the person has “sustained an economic loss” – or not. It is a threshold finding for “incurred expense”, but is not intended as a means of calculating the quantum of the incurred expense.”

In essence, the Court has accepted the conclusion that once the nonprofessional service provider or family member proves that they have sustained an economic loss, they have met the threshold and must be paid an attendant care benefit or the attendant care provided as calculated in accordance with the Form 1.

The Court concludes by providing words that gives a clear understanding of when attendant care is payable to family members:

“A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured – and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19 (1) has been met.”

In our previous articles, we have argued that there are many kinds of economic losses family members may incur including: loss of income, loss of ability to provide household services, loss of ability to provide caregiving to other family members, and/or actual expenses related to travel, babysitting expenses for other children, or other out-of-pocket expenses family members may incur as a result of their need to provide care to their loved one.

We anticipate further Arbitral and Court decisions will deal with other examples of economic losses, which will trigger payment of attendant care for family members who provide such care.

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