Attendant Care Incurred Under the September 1, 2010 SABS

Posted November 1, 2011

Insurers have been obliged to pay for “incurred expenses” for attendant care under successive Statutory Accident Benefit Schedules (SABS). Wawanesa v. Smith1 stood for the proposition that:

“… the word “incurred” is capable also of the wider meaning of “run into”, “render oneself liable to”, “bring upon oneself” or “be subject to”. There is a wider sense in which the expenditure is incurred within the time limit as soon as it is known with certainty that it is necessary and the amount is known.”

On September 1, 2010, the SABS was amended. The new Section 3 (7)(e) states:

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 has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, 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, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person;”

The September 1, 2010 SABS enshrines the right for an attendant care provider to be a family member. Specifically, Section 3 (7)(c) provides:

3 (7)(c) ” For the purposes of this regulation, an aid or attendant for person includes a family member or a friend who acts as that person’s aid or attendant, even if the family member or friend does not possess any special qualifications.”

In the normal course, as a pre-requisite to payment of attendant care, an occupational therapist or nurse will prepare a Form 1 which identifies the attendant care need.

In the context of attendant care, if

  1. the insured person (injured person) has received attendant care;
  2. the injured person has paid, promised to pay, or is legally obligated to pay for the Attendant Care; and
  3. the attendant care provider did so in the course of the employment,occupation or profession in which he or she would normally have been engaged, but for the accident,

The insurer is obliged to pay the attendant care expense. Equally, if

  1. the injured person has received attendant care;
  2. the injured person has paid, promised to pay, or is legally obligated to pay for the attendant care; and
  3. the attendant care provider sustained an economic loss as a result of providing attendant care,

The insurer is obliged to pay the attendant care expense.

In dealing with the insured person’s obligation to pay for attendant care, in the ordinary course an insured person is in a position to agree or promise to pay a family member for services which they provide as an attendant. As such that is not a significant hurdle. For a child, a custodial parent or guardian may pay for, provide a promise to pay for or have the legal obligation to pay for attendant care.

If an attendant care provider did so in the course of the occupation which he or she would have normally been engaged but for the accident, attendant care is payable.As such if, on a pre-accident basis, a family member is regularly occupied by providing care to another family member, that may be considered a person’soccupation.If a family member regularly passes his or her time providing care to a family member that is an “occupation“.If a family member’s calling or pursuit is taking care of another family member, that too may be considered an “occupation” in accordance with the Oxford English Dictionary’s definition.

Economic Losses

In addition, there are many economic losses which may be suffered as a result of using one’s time to provide attendant care, thereby leaving one unable to provide services for the purposes of other pursuits which have an economic value.

A loss is either non-economic (non-pecuniary) or economic (pecuniary).

Non-pecuniary losses are comprised of all losses which do not represent an in-road upon the person’s financial or material assets, such as physical pain or injury to feelings. Pecuniary loss is everything else.

A loss is either calculable or not calculable. If it is calculable it is an economic loss. If it is not calculable it is a non-pecuniary loss. A loss may be a pecuniary loss “even though the calculation must sometime be a rough one where there are difficulties of proof”.2

Section 61 of the Family Law Act, provides for the payment to family members of a non-pecuniary loss (loss of care, guidance and companionship). Family members are also entitled to “recover pecuniary losses arising from injury or death” (S.61). Damages may include “a reasonable allowance for loss of income or the value of services provided …” (S.61 (2) (d)). The value of services provided is thus an economic loss unto itself, under this Act.

The loss of housekeeping capacity is also an economic loss in tort which is evaluated pecuniarily. A person who provides attendant care to a family member incurs an economic loss. Providing this care may impair his/her ability to perform household tasks. This also is an economic loss.

Specifically, when he/she is not able to attend to housekeeping tasks because he/she is providing attendant care or when person “B” provides the housekeeping services because person “A” is occupied with providing attendant care, it is settled law that the value of the services provided are special damages or economic losses. 3,4 & 5

Dr. Jack Carr, an Economist has evaluated three potential economic losses which a laid off mother providing attendant care may have.

The mother did not have a job at the time of the accident, having been laid off previously. She could not be said to have permanently left the labour market. One of her economic losses was the loss of her availability to apply for a position to earn a living in her previous job or similar employment.

Secondly, this mother had another child. She was prevented/compromised in her ability to provide care to her second child in that she was required to devote herself full time to provide attendant care for her injured son. The cost of attendant care or babysitting services for her other child is an economic loss which she would sustain as a result of the need to provide attendant care to her injured son. Even voluntary services provided to supervise her other child are capable of pecuniary calculation and thus are an economic loss.

Finally, by virtue of her need to provide attendant care to her son, she was unable to engage in the regular home maintenance and housekeeping tasks in which she would otherwise have engaged. This too has been identified by Dr. Carr and the Courts as an economic loss.

A further alternative available for the family members is to engage a sitter to provide the care. This ordinarily is not the most economically viable option, given that the rates paid for attendant care under the Form 1 are substantially below market rates.

As to the nature or the extent of the economic loss necessary to triggerentitlement, we can expect a remedial and liberal interpretation of this phrase by the Courts and Arbitrators. If one sustains an economic loss, then one is to be paid attendant care expenses in accordance with the need identified by the Form 1, and the expense applications. 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 by the attendant care provider. That is, so long as the loss is not non-pecuniary (ie. related to pain or feelings and as such not calculable), it is a pecuniary or economic loss capable of calculation. If the attendant care provider has an economic loss, attendant care is payable in accordance with the Form 1.

Denials May Lead To Entitlement:

Where there is a denial by the insurer of an expense related to attendant care, Section 3 (8) of the SABS also assists the insured/injured person. It states:

” … if in a dispute… a Court or Arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of an expense, the Court or Arbitrator may, for the purposes of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.”

As such, if there is a denial of attendant care and the Arbitrator finds the denial to be one of the reasons an expense for attendant care treatment was not incurred the Court or Arbitrator may deem attendant care to be incurred. For example if a person required attendant care, payment was delayed and the person available to provide attendant care was a family member who did not sustain an economic loss or did not do so in the course of his or her usual occupation, an Arbitrator’s Order may reinstate entitlement.

In these circumstances, injured people will be well advised to engage appropriately trained nurses, occupational therapists and legal counsel who can identify the attendant care need and, if denied, are prepared to proceed to Arbitration and bring Interim Motions to obtain an Order compelling the insurer to pay attendant care.

Expense Applications

Applicants for payment of attendant care expenses for services they have provided should include information in the Expense Application relating to the attendant care. Where appropriate arrangements have been made with the injured person, the person submitting the claim for payment of the attendant care should indicate on the Expense Application:

” I, the undersigned hereby certify that the insured person for whom I am performing these services has [use one of:] paid [or], promised to pay me for these services. I have [use one of:] provided these services in the course of my regular occupation or profession [or] sustained an economic loss as a result of providing these services to the insured person.”

Motions for Interim Benefits

Motions for payment of interim benefits at the Financial Services Commission of Ontario have been a very helpful resource for injured persons and families who have provided attendant care to family members and had insurers deny the claim.

Two such interim motions, Keyes v. The Personal and Haimov v. ING Insurancewere brought by counsel of record, David MacDonald. Each of these motions resulted in the Arbitrator ordering the insurer to pay past attendant care benefits and attendant care benefits on an ongoing basis. Copies of these cases may, in appropriate instances, be sent to adjusters to remind them of their obligation and the consequences of failing to pay reasonable attendant care owing to injured people who require this attendant care. These decisions may be downloaded from the firm profile page of the author, David MacDonald at www.thomsonrogers.com/david-macdonald.

The Meaning of “Occupation”

The Oxford Dictionary definition of “occupation” includes:

“what occupies one”
” a means of passing one’s time”
” a business, calling or pursuit”

Absent an accident, children, spouses, siblings or parents often provide attendant care in the course of their usual occupation.

Occupational Therapy’s definition of “occupation” is inclusive of one whose regular activities include, for instance, providing care to a relative. In fact, it includes “any human endeavour that provides meaning or purpose in our lives”.

1 Wawanesa Mutual Insurance Co. v Smith (1998) 42 O.R. (3rd) 441 (Div.Ct.)
2 McGregor on Damages 16th edition, para 9.
3 McTavish v. MacGillivary [2000] B.C.L. R. (3d) 281 (C.A.)
4 Cairns v. Harris (1994), 117 Nfld.& P.E.I.R. 216 (SC) at para 46 to 49
5 McIntyre v.Docherty, (2009), 308 D.L.R. (4th) 213, 2009 0NCA 448 at para 22

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