What are Attendant Care Benefits?

We often represent accident victims who have been involved in motorcycle accidents, bicycle accidents, trucking accidents, car accidents, and pedestrian accidents  and who require attendant care to assist them with their day-today functions while they recovery from their serious injuries.  An attendant care benefit is an accident benefit provided under the Statutory Accident Benefits Schedule, O. Reg. 34/10 (SABS). It allows claimants to be reimbursed for expenses related to hiring an aide or attendant to help them with their day-to-day functions. These functions include help with dressing and personal grooming, bathing, cooking and feeding, and getting around. Attendant care also includes paying for a stay in a long-term health facility or home if not covered by OHIP.

What are the criteria to qualify for an Attendant Care Benefit?

The attendant care benefit pays for expenses that are (section 19, SABS):

• Reasonable and necessary.
• Incurred by or on behalf of the insured.
• As a result of the accident.

For services provided by either:

• an aide or attendant;
• a long-term care facility;
• chronic care assistance
•  

What about transportation expense?

Transportation expenses are payable under this section if they are (section 19(1)(b), SABS):

• Authorized transportation expenses;
• Not related to a medical or rehabilitation expense;
• Not related to a transportation expense to a medical examination (section 25(4), SABS).

What qualifies as “reasonable and necessary” Attendant Care Services?

There is no hard and fast rule for determining what is reasonable and necessary with regard to attendant care benefits. Our courts and tribunals have applied a broad approach to the analysis. In order to maximize your chance of success of obtaining attendant care benefits, you should:

• Ensure that the impairment requiring the assistance is documented through reliable medical records and reports.
• Establish that the amount of time requested is justified.
• Explain to your clients that credibility is key: they should always tell the truth and resist the urge to exaggerate. They should also perform to the best of their ability in any medical exam, including insurer’s exams.
• Provide evidence that the services have been provided: be as detailed as possible. Take care to differentiate the attendant care services from non-attendant care-related services.
• Provide witness statements, testimony from people who knew the client before and after the accident, that provide details about your client’s abilities and what they’ve witnessed with regard to your client’s attendant care This will generally only be necessary once the benefit has been denied.

What does it mean to have an incurred expense?

The Accident Benefit schedule provides a general definition of incurred in section 3(7)(e).

A good or service is “incurred” when all of the following are present:

• The claimant has received the goods or services to which the expense relates.
• The claimant has either:
  • paid the expense,
  • promised to pay the expense, or
  • is otherwise legally obligated to pay the expense.
• The person who provided the goods or service:
  • 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
  • sustained an economic loss as a result of providing the goods or services to the insured person
• The Court of Appeal, in a case called Henry v. Gore held that attendant care services are goods and services according to this definition.

Non-Professional Attendants (such as your friends and family members) and “Economic Loss”

Since September, 2010, in order for non-professional attendants, such as your friends and family members, to qualify to receive an attendant care benefit, they must have suffered an economic loss (i.e. lost money) in the course of providing the services.

Economic Loss is a term that is undefined in the SABS.

In Simser v. Aviva Canada Arbitrator Lee held that economic loss should be considered in the “ordinary, everyday meaning of those words”. He considered the definition of economic loss in Black’s Law Dictionary to be close to the ordinary meaning of the term:

Economic loss: A monetary loss such as lost wages or lost profits. The term usually refers to a type of damages recoverable in a lawsuit. For example, in a products-liability suit, economic loss includes the cost of repair or replacement of defective property, as well as commercial loss for the property’s inadequate value and consequent loss of profits or use. (Black’s Law Dictionary, 9th ed. (Eagan, Minn.: West Publishing, 2009))

Arbitrator Lee held that economic loss must relate to some form of financial or monetary loss. He rejected the proposition that economic loss should encompass mere loss of opportunity. Arbitrator’s Lee’s decision was upheld on appeal (Simser v. Aviva Canada Inc.).

What about a student dropping out of school to provide attendant care benefits?

In the Simser case noted above, Director Delegate Blackmore opened the door that it might be possible to establish a case of economic loss where a student has dropped out of school to provide attendant care for a claimant.

Possibilities include:

• Loss of tuition or other educational costs that may have been thrown away.
• Delayed entry into the work force.
• Restricted career potential.
• Other possible consequent forms of economic loss (at paragraph 24).

Director Delegate Blackmore opened the door that expenses paid personally by the attendant and directly related to the attendant care services performed could also be included in economic loss.

What about stay at home parents that are not professionals?

In a case called Josey v. Primmum Insurance Co., Arbitrator Fadel held that a stay at home parent would not qualify as a professional caregiver.

Are there caps on what is considered “economic loss”?

Attendant Care Capped on Economic Loss For Accidents after February 1, 2014 On February 1, 2014 Ontario Regulation 347/13 came into effect. This regulation added section 19(4) to the SABS. This section caps the amount of attendant care benefit for services provided by non-professional attendants to the amount of economic loss by the attendant. This will be so even if the amount allocated for those services on the Form 1 is higher.

Can attendant care services be provided electronically?

Yes. The Superior Court  in a case called Shawnoo v. Certas Direct Insurance Co., found that attendant care services can be provided in electronic form such as by:

• Telephone calls.
• Text message.
• E-mail.
• Video conferencing (such as Skype, Facetime).

What if there are benefit exclusions?

Attendant care benefits do not fall under the General Exclusions of section 31 SABS (and there are lots of potential exclusions). Therefore, applicants who are excluded from certain benefits under the general exclusion will still be permitted to apply for attendant care benefits.

What are the maximum amounts claimable for Attendant Care Benefits?

The maximum amount available to a claimant for attendant care benefits depends on whether the claimant:

• Had an accident before or after June 1, 2016.
• Falls under the Minor Injury Guidelines.
• Is designated as catastrophic or non catastrophic.
• Has purchased optional benefits.

Rule Changes as of June 1, 2016: if your accident was on or after June 1, 2016 the maximum amount available for the attendant care benefit is combined with the maximum medical and rehabilitation benefit, as shown below:

Minor Injury Guideline: $3,500 (medical and rehabilitation only, no attendant care available)

Non-Catastrophic Injuries: if your insurance policy was issued after June 1, 2016, the maximum amount for medical, rehabilitation and attendant care expenses is $65,000.

Catastrophic Injuries: If you are catastrophically injured, the maximum amount for medical, rehabilitation and attendant care expenses is $1,000,000.

Optional Benefits:  As a policy holder in Ontario, you are entitled to purchase optional benefits which will cover up to $130,000 incombined  medical, rehabilitation and attendant care expenses for non-catastrophic injuries, or an increased $1,000,000 for catastrophic injuries (which would bring the total to $2,000,000). You are also entitled to purchase optional benefits for medical, rehabilitation and attendant care expenses for “all injuries” that would increase the combined (medical, rehabilitation and attendant care) non-catastrophic benefit to $1,000,000 and the combined (medical, rehabilitation and attendant care) catastrophic benefit total to $2,000,000. If you were to purchase both the optional medical, rehabilitation and attendant care benefit for catastrophic injuries and the optional benefit for all injuries, the total benefit amount for a catastrophic injury will be $3,000,000.

Can Attendant Care Benefits be indexed to inflation?

If the insured has purchased the optional indexation benefit, the outstanding balance of the attendant care benefit will be indexed on January 1 of each year following the accident. This indexation may apply to both the monthly limits and the overall amount available for attendant care.

Does my insurance company get to deduct  or set-off other benefits from my Attendant Care Benefit?

Yes, the insurer is entitled to a deduction for the portion of the attendant care expenses that are reasonably available to you under any insurance plan or any other plan or law.

What is the difference between the amounts payable with respect to professional vs. non-professional attendants?

If the claimant hires a professional attendant the full monthly amount provided for in the Guidelines will be payable.  If the attendant is not a professional, such as a friend or family member, the attendant care payable cannot be more than the amount of money the attendant lost during the time they were providing services for the claimant (section 19(3), SABS).

How often and when are attendant care benefits paid?

Attendant Care benefits are to be paid monthly.  Payments must be made within 30 days after receiving an invoice for them (section 38(15), SABS).

What is the maximum potential duration of Attendant Care Benefits?

This depends on:

• Whether the accident occurred before or after June 1, 2016
• The age of the applicant at the time of the accident (post June 1, 2016 only).
• The claimant’s impairment category.
• Whether the claimant had purchased optional benefits (pre-June 1, 2016 only).

Since June 1, 2016, the duration of the combined Medical, Rehabilitation and Attendant Care Benefits are as follows:

18 years or older at the time of the accident, non-catastrophic: 5 years or until death if optional benefits were purchased.

Under 18 years old at the time of the accident, non-catastrophic: until 18th birthday or until death if optional benefits were purchased.

Catastrohically Impaired: until death.

Where is the procedure set out on how to apply for the Attendant Care Benefit?

The procedure for claiming for attendant care benefits as set out in section 42 of the SABS which you can find here.

What exactly is the Form 1: Assessment of Attendant Care Needs?

To apply for attendant care benefits, you must retain a registered nurse or occupational therapist to complete a Form 1. The assessor must provide a copy of the Form 1 to the you, your health practitioner, your lawyer, and the insurance company.

When should I submit the Form 1?

It is important that you submit the Form 1 as soon as possible. Section 42(5) of the SABS provides that the insurer may pay attendant care prior to its submission but must pay it after.

Where can I find a Form 1 to review?

The Form 1 is published by FSCO  (Financial Services Commission of Ontario).The form can be found at FSCO Auto Insurance Claims Forms (OCF Forms).

How are the forms submitted to my insurance company?

The form must be prepared and submitted by a registered nurse or occupational therapist.

Effective October 1, 2018, all facilities must submit the Assessment of Attendant Care Needs Form (Form 1) online through the Health Claims for Auto Insurance (HCAI) system. All insurers must communicate the approval or rejection of the Form 1 through HCAI. (FSCO Bulletin No. A-01/18)

What is the Form 1 comprised of?

The Form 1 comprises 5 Parts. Parts 1-3 set out the various attendant care services, Part 4 sets out the calculation of the monthly amount, and Part 5 is the signature of the assessor:

Part 1: Level 1 Attendant Care:

• dress;
• undress;
• prosthetics;
• orthotics;
• grooming;
• feeding;
• mobility (location change);
• extra laundering.

Part 2: Level 2 Attendant Care:

• hygiene;
• basic supervisory care;
• co-ordination of attendant care.

Part 3: Level 3 Attendant Care:

• genitourinary tracts;
• bowel care;
• tracheostomy care;
• ventilator care;
• exercise;
• skin care (excluding bathing);
• medication;
• bathing;
• other therapy;
• maintenance of supplies and equipment;
• skilled supervisory care.

Part 4: Calculation of Attendant Care

Part 5: Signature of Assessor(s).

Can I submit a retroactive Form 1 if I was hurt a while ago?

There is some ambiguity to this section as to whether a Form 1 can be retroactively submitted. Arbitrator Wilson’s decision in Kelly v. Guarantee Co. of North America, 2014 CarswellOnt 11374 (F.S.C.O. Arb.) opens the door in favour of allowing retroactive Form 1s in certain circumstances.

When does my insurance company need to respond to the Form 1?

Within 10 business days after receiving the assessment of attendant care needs, the insurer shall give you a notice specifying:

• The expenses from the Form 1 the insurer agrees to pay.
• The expenses from the Form 1 the insurer refuses to pay.
• The medical reasons for the insurer’s decision.
• Any other reason for the insurer’s decision.
• Any medical assessments the insurer requires the claimant to attend under section 44 SABS regarding any denied attendant care

What are Insurer Assessments? Are they biased because it’s the insurance company paying these doctors?

If your insurance company has requested a section 44 assessment, requesting that the you attend for the insurance company’s own assessment of attendant care needs, you must attend.  in our experience, most insurance company doctors are far from “inpedendant assessors” and side with the insurer because they are paid by the insurer. There is the odd assessor that we see who is impartial.

What if I miss my independent assessment appointment?

If you fail or refuse to attend at the insurer’s section 44 assessment, your insurance company may:

• Deny the attendant care
• Refuse to pay attendant care benefits relating to the period after you failed or refused to comply with that subsection and before the you submit to the examination and provides the material required by that subsection.

What if I proceed to then attend a re-scheduled appointment?

If the claimant then proceeds to attend (see Box, What To Do When a Client has Missed an Assessment), your insurance company must:

• Reconsider the application and make a determination under that section.
• Subject to the new determination, the optional benefits you have, and any limits reached on total benefits owed, resume payment of attendant care
• If payments are resumed, pay all amounts that were withheld during the period of non-compliance, if you, within 10 business days after the refusal or failure to comply, or as soon as practical thereafter, provides a reasonable excuse for not attending.

Can my insurance company re-assess me?

From time to time your insurance company can have you reassessed to determine:

• If you are still entitled to receive attendant care
• If the benefits are being paid in the proper amounts.

How does your insurance company re-assess you?

To reassess, your insurance company must send you a notice, requiring you to submit a new Form 1 within 15 days. Your insurance company may also at this time request a new section 44 assessment.

Can I submit a new Form 1 for reassessment if I need more care?

Absolutely. Any time there are changes that would affect the amount of attendant care benefit received, you may submit a new Form 1. If the new Form 1 indicates that a new amount is in order, your insurance company has the right to its own section 44 assessment.  Pending the receipt of the new Form 1, payments for the existing Form 1 should continue at the same rate.

Should I be getting some sort of benefit statement from my insurance company to tell my how much money I have remaining?

Yes – your insurance company must provide you with a benefit statement when the amount of the attendant care is first paid, or when the amount of the benefit is adjusted.

The statement shall include:

• The amount paid to the date of the benefit statement in respect of attendant care
• The additional amount remaining in respect of attendant care benefits, taking into account the applicable maximum limits.
• The amount paid by the insurer to the date of the benefit statement in respect of examinations conducted under section 44.
• Any information required by a benefit statement form required by the Superintendent.

Have you suffered a serious injury that requires you to need attendant care?

If you have suffered a serious injury and require attendant care benefits, our Hamilton personal injury lawyers can  help. We represent vicitms involved in motorcycle accidents, bicycle accidents, trucking accidents, car accidents, and pedestrian accidents.  Call our Hamilton Lawyers at 905-333-8888  or send us a confidential message through our online contact form to set up a free, no-obligation consultation.  And remember, we will never ask for money upfront.