Incurred ‘Attendant Care’ Expenses as of February 2014

Statutory Accident Benefits are benefits provided under the “No Fault” insurance regime in Ontario, and in accordance with the “Statutory Accident Benefits Schedule” (SABS).  Whether you are found to have caused an accident is irrelevant to one’s eligibility to receive Accident Benefits.  Entitlement to various benefits is then determined by each individual’s circumstances and various corresponding tests for entitlement to those benefits.

The SABS underwent significant changes for accidents that occurred on or after September 1, 2010 (New SABS).  Transitional provisions were provided to aid individuals in understanding and applying the New SABS.  However, there was still a great deal of confusion in understanding the implications of the New SABS.  The Financial Services Commission of Ontario provided a Bulletin entitled “Transition to the New Statutory Accident Benefits Schedule – Effective September 1, 2010, (Bulletin)” to assist with the transition to the New SABS.

This article will focus specifically on the changes to entitlement for attendant care (AC) benefits and the new definition and requirement under the New SABS for these benefits to be incurred.  According to the Bulletin, the new definition of “incurred expenses” in section 3(7)(e) and section 3(8) of the New SABS I to accidents prior to September 1, 2010, taking into account the transitional provisions for these ‘Old Accidents’.  The monthly amount payable for AC benefits for these Old Accidents was determined in accordance with a Form 1.  Quite often, the injured party, or the insured person, would have a Form 1 completed to determine their entitlement to the AC benefit, and receive the care and assistance required pursuant to the Form 1 by a family member. The insured person would then submit for the services they received in accordance with the Form 1, and provide reimbursement to the family member accordingly.

Under the New SABS, determination of AC benefits is still according to a Form 1.  But entitlement to the quantum of the benefit has changed.  The New SABS requires that the benefit be incurred.  Section 3(7)(e) defines ‘incurred’ as follows:

1. 1. the insured person has received the goods or services to which the expense relates,
   2. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
   3. the person who provided the goods or services,
      1. 1. 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
         2. sustained an economic loss as a result of providing the goods or services to the insured person.

Pursuant to the New SABS, if an insured party wishes to receive the AC benefit by a family member that does not provide the service in the course of their employment, occupation or profession, that family member must sustain an economic loss as a result of providing the AC services.

The decision of Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687 clarified the amount that was to be paid for the services provided by this type of AC service provider.  Pursuant to this decision, this type of service provider would be reimbursed for their services the full amount of the Form 1, even if the Form 1 value exceeded the income lost by the service provider.

Subsequent to the decision in Henry and Gore Mutual, section 19(4) of the New SABS pertaining to the service provider that has suffered an income loss by providing AC services will now be reimbursed the value of their actual economic loss, and not the full value of the Form 1.  This amendment came into effect February 1, 2014 and reads as follows:

“If a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.”

This amendment may see lower payments for AC benefits.  Or it may increase the use of professional caregivers where the Form 1 value exceeds the income loss of the family member that may otherwise have provided these services.

This new amendment may also see more creative uses of the AC benefit for those individuals that require a significant amount of care and would prefer a family member to be home with them.  The new SABS does not clarify that the services are to be provided by a professional OR a family member. This seems to leave open the option that a family member may be reimbursed the value of their income loss with the remainder of the care, up to the full value of the Form 1, being provided by a professional caregiver. This possibility remains to be seen and may require the assistance of the Courts for clarification in the future.

The above article is for general purposes only. Should you have a question about your legal rights and remedies, please contact:

Richard Bogoroch (or)

Lisa Penick (lpenick@bogoroch.com)