Attendant Care Benefits and Economic Loss Pre-February 2014 Motor Vehicle Accidents
There is a Decision which has just come down which could entitle a number of people to get attendant care benefits in claims before February 2014 that may not currently be receiving benefits at all.
In the Arbitration Decision of Futrell and State Farm, Arbitrator James Newland found that an economic loss was established where a spouse who was retired had driven his wife to various medical and rehabilitation appointments.
Under the law before February 2014, if a family member provides attendant care services, then there is no attendant care benefit payable unless they can establish that they have suffered an economic loss.
The Insurance Company argued that the parking fees and mileage for taking his wife to appointments did not qualify as economic loss because they were of such small amounts that they should be disregarded and that if the expenses were incurred they were in the nature of transportation expenses to and from treatment appointments and not payable because they were all less than 50 kilometers in one direction which precluded them from being paid by section 3.1 which determines authorized transportation expenses in relation to attendance at medical and rehabilitation appointments.
The Arbitrator found that the Regulation does not provide guidance in terms of defining economic loss and that the interpretation is left open to using the plain English meaning and any prior authority.
The Arbitrator looked at the case of Henry v. Gore in which an 18 year old boy ended up being paraplegic. His mother had taken an unpaid leave of absence from work and therefore had shown an economic loss and was entitled to the $6,000.00 per month maximum attendant care.
She was paid the $6,000.00 per month even though her actual loss of income was less than that amount.
In this case, the Arbitrator found that the cost for parking and mileage was an economic loss suffered by the retired spouse, as he was attending to his wife when taking her to medical and rehabilitation appointments, and therefore entitled to claim the full attendant care benefits for attending to his wife.
Unfortunately, the Legislature has now made the amendments such that effective February 1, 2014 the amount of attendant care payable cannot exceed the amount of the actual economic loss.
There may be a number of cases out there with accidents before February 1, 2014 where rehabilitation workers are involved and spouses or parents or others are providing attendant care but not getting paid because they were not employed at the time of the accident, retired or had to continue to work despite the fact that they may provide attendant care services in the evenings or at other parts during the day when they are not working. This case establishes that if they are paying for parking and driving a person to and from rehabilitation and medical appointments and providing attendant care in doing so, then they may be entitled to receive the attendant care payment even though there is no other economic loss.
This is an important case and all people involved in rehabilitation for individuals that were injured before February 1, 2014, should be looking at whether or not their client may be entitled to receive attendant care benefits if they are not currently being received.
At the time of writing, it is not known if the insurance company will appeal this decision.
This is a brief overview of the legislation, and is not intended to be relied on as legal advice.
Please contact Nigel G. Gilby for further information.