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July 2013

When it comes to the calculation of the attendant care benefits payable, the Form 1 remains king

Henry v. Gore Mutual Insurance Company

In the recent decision of the Court of Appeal in Henry v. Gore Mutual Insurance Company (2013 ONCA 480), the Court upheld a decision of the lower Court that the amount “incurred” for attendant care benefits is not limited to the amount of the “economic loss” sustained by the caregiver.

Facts

The respondent was involved in a motor vehicle accident on September 28, 2010. He was determined to have sustained a catastrophic impairment pursuant to the Statutory Accident Benefits Schedule—Effective September 1, 2010, Ont. Reg. 34/10(“SABS”).

The respondent was assessed as requiring $9,500 per month in attendant care. Therefore, pursuant to his assessment, he was entitled to $6,000 per month in attendant care (the maximum allowable monthly amount) up to the total maximum of $1,000,000. These amounts were not disputed by Gore.

The respondent’s mother took leave from her job as a manager at a retail store to care from her son. She earned $2,100 per month, working 40 hours per week.

In determining the quantum owed, Gore took the position that the amount should be determined with consideration of the respondent’s mother’s employment rather than the assessed amount on the Form 1 as this would be her “economic loss”.

Lower Court Decision

The respondent took issue with the calculation and brought an Application under Rule 14.05(d) and (h) of the Rules of Civil Procedure for a determination of the quantum of attendant care to which he would be entitled.

The application judge undertook a discussion of the latest revisions to the SABS, which, under s. 3(7) of the SABS included a preclusion of a member of the insured’s family, who was not ordinarily an income earner, from profiting from the attendant care benefit. Therefore the insurer became required to “pay all “reasonable and necessary expenses” for attendant care” but it required that the expenses be “incurred” in that the person has “paid the expense, has promised to pay the expense” and the person providing the services “has sustained an economic loss” as a result of providing the services.

The application judge found that “sustained an economic loss” is a threshold rather than a method to calculate the benefit owed. Therefore, if it was shown that the care provider had sustained an economic loss, the insured would be entitled to attendant care in the quantum provided in the Form 1.

Court of Appeal Decision

The Court of Appeal succinctly stated that the issue on appeal was whether Gore was “required to pay attendant care benefits for the entire 24 hours per day that the respondent required, and the mother provided, care, or only for the care provided during the 40 hours per week of paid employment foregone by the mother”.

Gore had conceded that the respondent’s mother had sustained an economic loss for the period she was not able to work as she was caring for her son. The question was whether an expense was “incurred” during the hours when the respondent’s mother would not have been working in any event, placing her in a similar category, for this period, as the non-income earners providing care.

Gore appealed the application judge’s decision on two grounds:

  1. He failed to recognize, in providing “the goods or services”, the respondent’s mother only sustained an economic loss for providing attendant care during the hours she would have been working. The intent of the revised SABS was to restrict payment to family members and this interpretation “would not achieve that objective”; and

  2. He erred in finding that an insurer is obligated to pay all expenses outlined in a Form 1.

In terms of issue one, the Court of Appeal, based on the language and logic of the SABS,agreed with the application judge that “economic loss” is a threshold for entitlement to attendant care benefits. It found this interpretation to be consistent with s. 19(2) of the SABS that the Form 1 determines the “amount” of a monthly care benefit, subject to the maximum and if the legislature intended for the amount to be calculated based on the number of hours a family care-giver was not able to work, it could have included such a provision.

The Court also opined that the requirement that a family care-giver need to have sustained an economic loss, “provides a rough check” of the situations the new SABS were trying to avoid with family care-givers. It was also noted that as of the Court of Appeal hearing, the respondent no longer needed 24 hour care and his mother returned to work, no longer sustaining an “economic loss”. As such, it was conceded by the respondent that he would no longer be entitled to attendant care for any services provided by his mother.

The Court refused to define “economic loss” under the SABS but felt it was clear in this case; the respondent’s mother gave up paid employment to stay at home.

With respect to issue number two, that the application judge erred in finding that an insurer was obligated to pay all expenses outlined in the Form 1, the Court agreed that with previous FSCO decisions that held that an insurer is permitted to request information to verify that an economic loss had been sustained by a family member providing care or other information or that the services provided were reasonable and necessary and found that the application judge did not rule in the contrary. It was also noted by the Court that Gore had conceded that the care described in the respondent's Form 1 was reasonable and necessary and had been provided.

The Court dismissed the appeal with costs.

Gore took a novel approach to calculating attendant care, however despite the changes in the definition as to who may provide attendant care, the Court of Appeal made it clear that the Form 1 remains king in determining the quantum to be paid. Therefore, claims handlers faced with a claim attendant care where a family member is providing care-giving services still have the right to, and should, confirm that that family member sustained an “economic loss” in providing these services. Once however, this threshold is met, the insurer must pay attendant care pursuant to the Form 1.


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