Quantifying Damages: Personal and Attendant Care

By Roger Foisy on July 29th, 2016

After suffering a personal injury from an at-fault party, victims are entitled to compensation for the serious injury and any resulting disability. A personal injury lawyer fights to secure the maximum settlement for their injured client, based on their ability to demonstrate the extent of the “damages” the person sustained across all facets of their life (work, home, social, etc.).

In this article, we will discuss how to quantify personal care and attendant care damages. One of the goals of an award of personal injury damages is to compensate the injured party for the loss which he or she has sustained as the result of a wrong done to them. When assessing personal/attendant care and future care, the primary goal is to ensure the accident victim is adequately cared for when they need it, now and in the future.

As with every other head of damage, in order for compensation to be awarded, you must establish proof that your condition (for which you now require care) was a result of the accident.

TherapyWhat Can Be Considered “Personal Care”?

Personal care can vary quite significantly, depending on the specific accident, injury, and the help now required.

Personal care can range from more complicated care needs like the removal of a trach tube from the person’s throat to less complicated care assisting someone with tying their shoes. Listed below are a few other examples of what personal care might include when helping the person, but is in no way limited to this short list:

  • Walk to the washroom
  • Use the washroom
  • Eat or cook
  • Get dressed
  • Maintain personal hygiene (can include everything from needing help to cut toenails, to needing help to take a bath/shower, to needing someone to clean up after incontinence)

Personal care can also be required if the injured person needs someone there to remind them to take their medication or to supervise them because it would be dangerous for them to be left alone.

An occupational therapist or Registered Nurse (RN) can assess how much personal care a person will need following their injury.

Who Helps with Personal Care – Family Members or Professionals?

Personal care is typically administered by a Personal Support Worker (PSW), Registered Practical Nurse (RPN), Registered Nurse (RN), or a family member.

Personal care is expensive; in Ontario, private personal care work generally costs between $24-$30/hour. If the injured person has hired someone to perform personal care since the injury, they are entitled to receive compensation for the fees charged by the service provider.

However, most personal injury clients cannot afford that expense. If they do not have benefits available, they often resort to family or friends who are willing to help.

Like housekeeping and home maintenance damages, if a family member or friend has provided care for free since the injury, it is considered a “gratuitous work claim”. The person has performed a service, which should be compensated according to industry standards.

Quantifying Personal Care Damages when Family Members or Friends Are Caregiving

Unfortunately, it can be more of a challenge to recover damages if a family member or friend has taken on the caregiving role for the injured person, as the at-fault party may argue that it isn’t really that much of an issue. Do not allow this to discourage you. Although no one is paying the family member to provide care, they are still providing a service for which you can claim compensation.

Further, the family member may not always be able to provide the care you need. Two…three…ten years down the line, it can be exhausting for family to continue caring for a loved one. It is difficult and stressful work, and they will need respite.  If 24/7 supervision is needed, it can remove the freedom of family members who no longer have the flexibility to do things like leave the house to grab coffee or a movie, or go to bed early.

In serious cases where you will need care for years or possibly for the rest of your life, it is essential to have the funds to hire a professional – this saves marriages, family relationships, and friendships from the psychological burden of caregiving. Visit this resource on handling caregiver stress and burnout for more information and strategies for coping.

This is why, even if a family member or friend is currently caring for you, it is critical to claim personal care damages and receive the funds necessary for future care.

How to Quantify Personal Care Damages

Personal care is a function most individuals perform for themselves on an unpaid basis; however, when an injury impacts a person’s ability to do so, they are entitled to compensation to ensure they are still able to receive these services from a third party.

To fully quantify personal care damages, it’s important to distinguish between what you were able to do before the injury, and what you can/cannot do after.

With the help of your lawyer, caregiver, and perhaps an occupational therapist, you can generate a list of all the personal care tasks you can no longer perform without aid. With this insight, your lawyer can quantify every aspect of your personal care claim and ensure you receive a fair settlement.

A thorough lawyer should take the time to fully understand your specific situation, including your life and responsibilities before and after your accident, to ensure you do not under-settle your case. By quantifying every claim, including personal care damages, you will receive a just settlement that will help to ease your financial burden during your recovery.

If you have sustained a personal injury at another party’s fault, please contact me and my team of experienced personal injury lawyers for a free consultation.

Watch my video series about personal injury law.

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