A recent decision by the Ontario Court of Appeal has provided clarification on the circumstances in which attendant care benefits are payable to family members under the new Statutory Accident Benefits Schedule – Effective September 1, 2010, Ont. Reg. 24/10 (“SABS-2010).
In Henry v. Gore Mutual Insurance Company, 2013 ONCA 480, the court looked at the situation of Mr. Tyrone Henry, who became paraplegic following a motor vehicle accident on September 28, 2010. After the accident, Mr. Henry’s mother took an unpaid leave of absence from her full-time job to provide her son with the 24-hour care he needed.
Under subsection 19(3) of the SABS-2010, Mr. Henry’s mother was entitled to a maximum of $6,000 per month or a total of $1,000,000 in attendant care for assisting her son with basic tasks he had trouble doing such as bathing, dressing, cooking, eating, laundry, moving around, and dispensing routine medication.
Under subsection 3(7)(c) of the SABS-2010, a family member or friend who provides attendant care to an injured person following a car accident is entitled to be paid for their services even if they do not possess any special qualifications. The amount payable is based on the calculations listed in the “Assessment of Attendant Care Needs” or “Form 1” which is prepared by a nurse or occupational therapist and then submitted to the injured person’s car insurer.
Subsection 42(6) of the SABS-2010 states that the monthly amount listed on the “Form 1” should be paid within 10 days of the insurer receiving the form. However, in order to be paid, the friend or family member must be able to show that they have “incurred” some form of “economic loss” as a result of providing attendant care services.
If an insurer does not agree with the amounts listed in the “Form 1”, they have the option of requiring an insured person to attend a medical examination with their own doctor or rehabilitation specialist.
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In Mr. Henry’s case, the automobile insurer did not dispute the “Form 1” stating that Mr. Henry required 24-hour care. Instead, they took the position that Mr. Henry’s mother should not be paid the full amount listed and argued that the amount payable should be pro-rated, based on the eight hour day that Mr. Henry’s mother typically worked.
The court rejected the insurer’s argument stating that the SABS-2010 is comprehensive legislation that would clearly indicate if monthly attendant care benefits were to be calculated according to the number of hours a family caregiver is unable to work or the quantum of economic loss sustained by the caregiver. The court maintained that the full amount listed on the “Form 1” should be paid as long as care was provided and the family member who provided that care sustained an economic loss. The court added that the amount payable in attendant care should not be reduced only because the total number of hours the family member missed from work is less than the total number of hours of care listed in the “Form 1”.