Attendant Care Eligibility and CERB

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Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Attendant Care Eligibility and CERB | McLeish Orlando Personal Injury Lawyers Toronto

When someone is injured in a car accident, there are multiple avenues for obtaining recourse to help recover from injuries sustained. One of these avenues is accident benefits.

In Ontario, automobile insurance policies contain mandatory, no-fault coverage that kicks in when someone is injured in a motor vehicle accident. This coverage applies to not only the driver but also the passengers and pedestrians involved.

This coverage comes in the form of the Statutory Accident Benefits Schedule (“SABS”) under the Insurance Act and contains a number of “benefits” that are aimed at making the injured person whole again, including:

  • Income replacement, non-earner, and caregiver benefits
  • Medical and rehabilitation benefits
  • Death and funeral benefits
  • Other expenses
  • Attendant care benefits
  • Housekeeping benefits

Attendant Care Benefit

The attendant care benefit helps cover the cost of an attendant’s services, should one be required, either at home or in a healthcare facility. If you are unable to care for yourself without assistance as a result of the accident, then the insurer will pay “reasonable and necessary” expenses for an aide, attendant, or long-term care facility.

Who is an “attendant” for the purposes of this benefit?

Often, injured persons hire outside help to assist them in their daily living. For example, an attendant care worker can be hired to assist with services such as meal preparation, bathing, and going to the bathroom. But, anyone can be an “attendant.” More commonly, family members are providing services for their loved ones. However, given the wording of section 19 of the SABS, attendant care expenses must be incurred by or on behalf of the insured person, meaning that the attendant must be actively receiving payment for their services. The benefit seeks to reimburse the insured for the actual expenses incurred. This can cause difficulty for those providing services to their injured family members, as they are not typically paid for doing so. And in addition, family members of injured persons often have to leave their job in order to provide ongoing care.

So, how do these services fall within the SABS? The License and Appeals Tribunal has addressed this issue in a number of recent decisions. Ultimately, the applicant for accident benefits must demonstrate to the insurer that the attendant sustained an economic loss as a result of providing care to their injured family member.

Does being let go from your job, or taking a leave of absence, fit the requirement of “sustained economic loss”?

In a 2017 LAT decision, the Tribunal concluded that an applicant is entitled to attendant care benefits based on the economic loss suffered by the applicant’s mother, who provided care to the applicant and lost her job as a result. The applicant demonstrated this by providing the mother’s record of employment, which confirmed that she was dismissed from her job due to absences from work.[1]

In another decision, the applicant’s mother took an unpaid leave of absence from her job to provide full-time attendant care services to the applicant. The applicant demonstrated this with financial documentation and was, therefore, able to receive attendant care benefits to cover the cost of services provided by her mother.[2]

What about if your attendant doesn’t have a job, but provides services to you?

As mentioned, the attendant must sustain an economic loss for the applicant to have these services covered. In a recent LAT decision, Vice-Chair Chloe Lester, in referring to a 2015 Superior Court decision, stated that:

“…”economic loss” includes financial losses associated with forgoing promotions, wage increases, or the ability to accept other jobs. This type of economic loss must be based on an actual financial loss and on a proper evidentiary foundation.”[3]

In this decision, the applicant argued that his brother suffered a “lost opportunity” in missing applying or receiving different job opportunities, given that he had been out of the workforce in order to provide attendant care to the applicant. Vice-Chair Lester said that assumptions about the brother’s life are not enough to meet the proper evidentiary foundation required to demonstrate economic loss.

Given these interpretations, it seems clear that as long as an applicant can provide some evidence that the attendant has sustained economic loss, for example, by showing job offers that were rejected and a breakdown of the number of hours spent providing care, an insurer and/ or the Tribunal will be more likely to accept the services as being covered under the benefit.

How does the Canada Emergency Response Benefit (CERB) fit into this?

Consider the following two scenarios:

  1. A caregiver is off work to provide care to a loved one after they sustained injuries in a motor vehicle accident, COVID-19 hits and the caregiver applies for CERB;
  2. A person is off work due to COVID and is receiving CERB, and then a loved one is injured in a motor vehicle accident and the person on CERB begins providing attendant care.

In both scenarios, it is likely that CERB payments will be deducted from the attendant care benefit, and the caregiver will not be able to demonstrate an “economic loss.” In other words, if the caregiver was not providing care to the applicant, the caregiver in these cases would still be eligible to receive the CERB, thus not sustaining an economic loss.

The CERB and the attendant care benefit can likely work in conjunction. However, this is an unexplored area of accident benefits and this will likely be determined on a case-by-case basis.

 

 

[1] 17-001627 v Certas Direct Insurance Company, 2017 CanLII 99139 (ON LAT).

[2] B.D. v Wawanesa Mutual Insurance Company, 2018 CanLII 140989 (ON LAT).

[3] Y.K. v Aviva General Insurance Company, 2020 CanLII 3443 (ON LAT), at para 51.

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