A Divisional Court decision upholding a woman’s entitlement to attendant care benefits offers guidance on the Statutory Accident Benefits Schedule’s controversial “incurred expense” provisions, according to the injured plaintiff’s lawyer.
The decision in Helmer v. Belairdirect Insurance Company revolved around the May 6, 2016 motor vehicle accident that injured Belinda Helmer, the owner and operator of an assisted living residence.
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Deanna Gilbert, a partner at Toronto personal injury law boutique Thomson Rogers, says she welcomes the court’s endorsement of the focus on the legitimacy of the services when determining entitlement to attendant care benefits.
“The case law has been up and down on the incurred expense definition, but this gives further authority to the emerging trend,” she says.
“The purpose of this legislation was really to distinguish between folks who are specifically trained and qualified to do a job compared with those who are providing a loving, caring service but without the proper training and experience. And this decision emphasizes that it’s all about the legitimacy of the service provider.”
By making legitimacy the key determinant, Gilbert says, the decision also takes the pressure off service providers to prove exactly when they entered or reentered their profession.
“Where this case is more helpful than some others is that it accepts the LAT’s conclusion that there isn’t a need to show that the service provider was working in that capacity on the day of the accident or before that,” she adds.
“There’s a bit of flexibility, which makes sense. Just because you’re unemployed for a week or month [is] not going to delegitimize the services you provide in a professional capacity. You don’t stop being a PSW by trade just because you’re out of a job for a particular period of time.”
View full article as it originally appeared in the June 11, 2018, issue of Law Times: Entitlement to attendant care benefits upheld