When in a motor vehicle accident, regardless of fault, you are entitled to accident benefits from your insurance company. One benefit is for ‘attendant care,’ which covers daily-care expenses if you are no longer able to care for yourself.
The amount of attendant-care benefits depends on the seriousness of the injury. For serious or ‘catastrophic’ injuries—like quadriplegia, paraplegia, amputation, blindness, and brain injuries—the maximum attendant-care benefit is $1,000,000 for life (maximum of $6,000/month). It is essential to obtain appropriate financial support when coping with a serious injury. Frequently, this care comes from family members who take time from work to care for the injured person.
A recent example is the Ontario Superior Court of Justice’s case, Henry v. Gore Mutual Insurance Company (2012 ONSC 3687). Tyrone Henry, then 18, suffered catastrophic injuries from a motor vehicle accident in 2010, and his mother provided attendant care. She had taken a leave of absence from her full-time position at a retail store where she’d worked 40 hours per week for a salary of $2,100 per month.
The issue in this case was how much in attendant-care benefits should Gore Mutual Insurance pay to Mr. Henry for care provided by his mother. Mr. Henry’s Assessment of Attendant Care Needs Form (Form 1) concluded that he would need $9,500 per month. However, the maximum amount payable for a catastrophic injury under SABS is $6,000 per month.
Gore Mutual Insurance Company initially asserted that if the insured’s mother could prove that she had sustained an economic loss then they would reimburse her. Instead of paying the attendant-care provider the $6,000 maximum amount, the insurance company argued that it was only liable for the hours she was away from her job. The insurance company calculated attendant care to be $2,117.40 per month. Justice Ray of the Ontario Superior Court of Justice disagreed with the calculation.
The Statutory Accident Benefits Schedule states that attendant-care benefits be paid for all reasonable and necessary ‘incurred expenses’ by or on behalf of the injured person as a result of the accident for services provided by an aide, attendant, and long-term or chronic-care facility. If a family member provides attendant care, they must have sustained an ‘economic loss’ as a result.
According to Justice Ray, a plain reading of the relevant sections provides that if a family member stays home from work and loses income in order to provide all reasonable and necessary attendant care to the injured person, then these are ‘incurred expenses.’ Justice Ray further states that while ‘economic loss’ serves as a threshold for finding ‘incurred expenses,’ it is not the measure for calculating the financial amount paid by the insurance company. The Court decided that Gore Mutual was required to pay Mr. Henry the maximum amount of $6,000 per month for his attendant care.
This decision is likely not favoured by the insurance industry as it would require them to pay out more than they would have if the extent of ‘economic loss’ served as a strict measure to determine attendant-care benefits. For those who suffer serious injuries through motor vehicle accidents, attendant care is one of the most important benefits as it allows victims to manage their daily lives without dire financial repercussions.
To read the full case of Henry v. Gore Mutual Insurance Company (2012 ONSC 3687), please click here.