Claimant Collects Complete (Attendant) Care Claims

June 29, 2012 | Anna-Marie Musson

In the Henry and Gore Mutual Insurance Company case, the applicant, Mr. Henry brought an application pursuant to Rule 14.05(d) and (h) to determine a dispute with respect to quantum of attendant care payable to an insured for services rendered by his mother.

Mr. Henry was catastrophically injured in the accident on September 28, 2010.

The Form 1 indicated his needs were approximately $9500 per month. The maximum payable under the SABS is $6000 per month. Gore did not dispute the needs as set out in the Form 1.

Mr. Henry’s mother provided the attendant care services post-accident. At the time of the accident, she had been working full-time as an assistant manager for a retail store. She earned $2100 per month. She took a leave of absence to care for her son, after the accident.

Gore took the position it would indemnify the service provider (Mr. Henry’s mother) to the extent of her financial loss. Rather than paying her lost income, it calculated the number of hours and paid her a proportion of the attendant care expenses. Gore paid the service provider $2117.40 per month in attendant care benefits.

Justice T. Ray took a plain reading of the legislation and found that if a family member stays home from work and loses income in order to provide attendant care services, the definition of incurred has been met. The term “economic loss” is not defined in the regulations.

He stated:

If the amount as opposed to the fact of the economic loss were intended to be relevant, then one would expect the regulations to be of assistance in calculating the amount, since economic loss has been defined in very broad terms in claims for compensation in tort law cases and has been the subject of a great deal of jurisprudence because of the difficulty in quantification. This omission implies that no such calculation is relevant beyond a finding that the person has “sustained an economic loss”. It is a threshold finding for “incurred expenses” but is not intended as a means of calculating the quantum of the incurred expense.

Gore was required to pay the attendant care in accordance with the Form 1, being $6000 per month.

See: Henry v. Gore

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