In April of 2017, the appeal decision of Delegate Rogers in MVACF v. Barnes was released. The decision will be troublesome for many families who provide attendant care to their injured love ones in a non-professional capacity.
To understand the importance of the decision, the February 1, 2014 amendment to the Statutory Accident Benefits Schedule (the “amendment”) must be understood. Prior to the amendment, so long as a non-professional attendant care provider (typically a family member) could prove that he or she had suffered an economic loss, even on a de minimus basis, while rendering the attendant care, then the insured would be entitled to the full value of the assessed attendant care benefit per the Form 1 (up to, of course, the maximum monthly benefit of $3,000 for non-catastrophic cases or $6,000 for catastrophic cases). In other words, the attendant care rule could be described as “in for a dime, in for a dollar”. The amendment marked a significant change to this rule. The amendment prescribed that the amount payable under the attendant care benefit would be restricted to the actual economic loss suffered by the non-professional attendant care provider (up to the maximum of the Form 1 or policy limits). In other words, the amendment could be described as “in for a dime, in for a dime”.
Turning to the recent Barnes decision, the insured sustained a catastrophic impairment arising from a January 3, 2012 motor vehicle crash. Her mother took an unpaid leave of absence from work in order to provide her with attendant care services. The mother did not provide particulars to the insurer on the actual amount of income that she was losing, but presumably it was an amount less than the amount listed in the Form 1. The issue was whether the amendment applied to crashes arising prior to February 1, 2014. The Arbitrator answered the question in the negative but, on appeal, Delegate Rogers held that the amendment did apply to pre-February 1, 2014 crashes with respect to those attendant care services that were/are provided after February 1, 2014.
There have been a number of decisions in both the tort and accident benefits contexts as of late in which debates have arisen over the effect of amendments to the law and the application of those amendments to ongoing cases arising from crashes that pre-dated the amendments. Barnes represents yet another one of these debates. As with what we have seen on other issues that have been debated it this sense, Barnes does not represent the first decision on the topic of the application of the February 2014 amendment to ongoing cases, nor does it likely represent the last. The reason being that Barnes now conflicts with previous case law so, at some point, either the Divisional Court will need to rule on the issue or further FSCO/LAT decisions will need to address the conflicting case law.
For instance, in the 2015 FSCO Arbitration decision of Futrell v. State Farm, the insured had been injured in a motor vehicle crash that occurred on November 3, 2010. As a result in part of driving phobia arising from the crash, her husband had to drive her to and from medical appointments, resulting in a minimal but actual economic loss incurred (e.g. mileage expenses). The Arbitrator held that these expenses related to the provision of attendant care, were actually incurred and, while de minimus, were sufficient to trigger the full attendant care benefit per the Form 1. In other words, notwithstanding that some of the attendant care at issue was provided during a period of time that post-dated the February 2014 amendment, the Arbitrator still applied the “in for a dime, in for a dollar” rule. In fact, the Arbitrator even acknowledged and referenced the amendment in the decision, yet did not seemingly consider it to be relevant to the analysis since the crash arose prior to the amendment.
In summary, yet another “grey area” has formed under the topic of attendant care, and it is a grey area that may have significant monetary implications. Accordingly, it will be important for lawyers to be prepared to attack the analysis in Barnes (in part, by pointing to conflicting case law) and for family members, out of an abundance of caution, to be extra diligent about documenting any and all economic losses incurred while providing attendant care to a loved one.