A Summary of Attendant Care Benefits for Ontario accident victims
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.
The attendant care benefit pays for expenses that are (section 19, SABS):
Transportation expenses are payable under this section if they are (section 19(1)(b), SABS):
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:
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:
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.).
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.
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.
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.
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.
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:
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.
The maximum amount available to a claimant for attendant care benefits depends on whether the claimant:
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.
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.
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.
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).
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).
This depends on:
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.
The procedure for claiming for attendant care benefits as set out in section 42 of the SABS which you can find here.
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.
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.
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).
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)
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:
Part 2: Level 2 Attendant Care:
Part 3: Level 3 Attendant Care:
Part 4: Calculation of Attendant Care
Part 5: Signature of Assessor(s).
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.
Within 10 business days after receiving the assessment of attendant care needs, the insurer shall give you a notice specifying:
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.
If you fail or refuse to attend at the insurer’s section 44 assessment, your insurance company may:
If the claimant then proceeds to attend (see Box, What To Do When a Client has Missed an Assessment), your insurance company must:
From time to time your insurance company can have you reassessed to determine:
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.
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.
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:
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.
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