We find ourselves in unprecedented times. In the midst of the COVID-19 health crisis, Reybroek Law is taking every available measure to protect our clients and their interests. For many accident victims who receive attendant care services during this pandemic, there is growing anxiety about having attendant care providers come to someone’s home to provide needed care.
While it is always recommended to receive care from professional attendant care providers, there are certain cases where family members, even non-professionals, can be considered appropriate attendant care providers for the purpose of being compensated by one’s accident benefits provider. It should also be noted that who will be considered to be a proper attendant care provider will be case-specific.
The guiding relevant provision of the Statutory Accident Benefits Schedule provides:
(7) For the purposes of this Regulation, (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,
(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;
Section 3(7)(c) of the Schedule is clear that
…an aide or attendant for a person includes a family member or friend who acts as the person’s aide or attendant, even if the family member or friend does not possess any special qualifications;
Further, Section 19(3)(4-5) explain that,
- … 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 result of, providing the attendant care.
- Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did so for remuneration, and the actual expenses incurred in respect of the attendant care services are lower than the amount of the monthly attendant care benefit as determined under subsection (2), the insurer shall only be liable for payment of the incurred expenses.
What this all means is that there are two cases when family members can be compensated by the insurance company for providing attendant care services:
1) a family member can demonstrate that the relevant services were provided in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident;
In determining if attendant care is payable, adjudicators have generally found attendant care is payable to family members when the family member has worked in a capacity of a care provider capacity prior to the accident and/or at the time the attendant care services were provided, or when a family member can prove they were actively seeking employment in that capacity at the time of the accident or at the time the attendant care services were provided.
For example, in AP v Coseco Insurance Company, LAT 16-004363 2017 CanLII 76917, the Applicant’s mother was a trained and certified PSW, but had not yet obtained her first position as a PSW at the time of the accident. Based on the evidence provided at the hearing, the adjudicator held that a family member is not required to have a perfect record of her job search activities and that the credibility of a witness will be an important factor in determining if an individual was in fact in the process of looking for work. The Adjudicator further held that inability to find work should not exclude a person from being able to qualify as a provider for attendant care purposes.
The Adjudicator concluded that as the Applicant’s mother was a trained and certified PSW who was actively seeking employment as a PSW prior to the accident, which she did obtain subsequent to the accident, attendant care was payable to the Applicant’s mother. This case-specific approach can be helpful for families with PSWs in the family who are not working due to the current crisis but would be working otherwise.
2) If a family member was not providing services in the course of their employment, occupation or profession, they can still be compensated if they can demonstrate that the family member has suffered an economic loss in providing the relevant services
Where a family member does not meet the above test, they may still be compensated for any economic loss incurred as a result of them providing attendant care services. This means that any family member, regardless of qualifications, may still receive compensation for providing attendant care if they can show a loss of income as a result. Examples of this would be working less hours, or, in our current environment, taking a leave of absence to provide care for a loved one who is in isolation at home. However, both the Schedule and case law are clear that you can only be compensated up to the Form 1 amount, and only for amounts that you would have been paid if you had been working.
In 17-005604 v Wawanesa Mutual Insurance Company, 2018 CanLII 140989 (ON LAT), the Applicant provided evidence that their mother took an unpaid leave of absence from her job as a part-time manager of a lottery booth to provide full-time attendant care services to the Applicant. While the Applicant was eligible for $5,489.14 a month in attendant care services as per the Form 1, based on her tax records, the Adjudicator found that the Applicant’s mother had sustained an economic loss of only $9,952.67 per year, or $839.29 per month, in providing attendant care to the Applicant. Based on this evidence, the Applicant’s mother was only paid $839.29 per month for her attendant care services.
The take away from the above is that in cases where attendant care has been approved, there are options available to Applicants and their families in terms of how that care is provided. This may be helpful for family members of attendant care recipients who would like to take a leave of absence during this health crisis and provide assistance to their injured family member at home. However, each case will be fact specific, and it will be important to speak to a lawyer about your specific situation.
A personal injury lawyer can help an injured person and their family members understand their attendant care options. We are here to help. If you or a loved one has been injured please contact our expert team at Reybroek Law for a free consultation.
