Toronto Injury Lawyer Blog
Attendant care benefits.
What are they?
How do they work?
How do I get compensated? For how much and for how long?
These are all important and common questions after a serious car accident in Ontario.
The law surrounding attendant care benefits has changed significantly since they were conceived under the Statutory Accident Benefits Schedule (SABS) and Insurance Act. For whatever reason, insurers and the government like to tinker with attendant care benefits thereby changing the laws on what seems to be an annual basis.
The first thing you need to know when claiming attendant care benefits is WHEN your car accident took place?
The timing of your car accident is important, because this will expose you to a different set of rules. There are different rules for attendant care benefits before June 1, 2016; and different rules for attendant care benefits on or after June 1, 2016.
For the purposes of this Toronto Injury Lawyer Blog Post, we will use the example of the current SABS, for car accidents on or after June 1, 2016.
Attendant Care Benefits are NOT available if your accident is put under the Minor Injury Guideline.
If your injuries are NOT under the Minor Injury Guideline, but are deemed as Non-Catastrophic, you are entitled to up to $3,000/month for up to 5 years or, in the case of a minor, up to the age of 28.
If your injuries are deemed catastrophic, you are entitled to up to $6,000/month, and those attendant care benefits are available for life.
However, all attendant care benefits, whether the accident has been deemed catastrophic or not, are subject to a combined Attendant Care/Med-Rehab Maximum Limit.
For non-catastrophic claims, the combined Attendant Care/Med-Rehab Maximum Limit is $65,000, and is only available for a period of 5 years, or until the age of 28 for minors.
For catastrophic claims, the combined Attendant Care/Med-Rehab Maximum Limit is $1,000,000 for life.
What are Attendant Care Benefits for, and what do they cover?
Attendant care benefits are intended to cover “reasonable and necessary” services when hiring someone to look after an injured accident victim.
These services include but aren’t limited to such things as:
- Meal Preparation + Clean Up + Feeding
- Transfers
- Bathing
- Grooming
- Dressing
- Supervision
- Going to the Bathroom
- Accompany to appointments/meetings
These attendant care services can be administered at your own home, outside or your home, or even in a long term care facility.
There are problems in Ontario with getting Attendant Care Benefits.
For starters, Attendant Care Benefits need to be deemed to be “reasonable and necessary“. The insurance company essentially acts in your time of need as Judge, Jury and Executioner when deeming whether or not your attendant care benefits are “reasonable and necessary“. They can approve, deny or refer your claim to an IE at first instance.
It’s usually at this first instance (ie right after your car accident) when you need the attendant care benefits the most. Waiting for an insurer to make up their mind whether or not your attendant care benefits are deemed to be reasonable and necessary is time consuming, frustrating, puts your safety at risk.
If the attendant care benefit is denied at first instance, it will be referred to an IE. This is an opportunity for a doctor or health care professional selected by, and paid by the insurer to determine if the proposed attendant care benefit is reasonable and necessary. It can take time to get the IE set up. It can take time for the IE report to get generated. While all of this waiting is happening, the accident victim is not getting any attendant care benefits, unless they are paying for these attendant care benefits out of their own pocket, or from a collateral benefit plan.
Should the IE report come back and deem the attendant care benefits to be reasonable and necessary, then the attendant care benefits will be approved and paid.
Should the IE report come back and deem the attendant care benefits not to be reasonable and necessary, then the attendant care benefits won’t get paid and the accident victim is back to square one. The accident victim can then opt to pay $100 an apply to the License Appeal Tribunal (LAT) to challenge the IE report and the insurer’s finding. By the time the LAT hearing takes place, a lot of time will have passed, without any attendant care benefits getting paid out to the injured accident victim.
How do Attendant Care Benefits get paid out?
Attendant care benefits aren’t automatically paid out. First, a person like an occupational therapist will need to complete an Assessment of Attendant Care Needs Form 1.
The Form 1 sets out the quantum of time required for your attendant care, and over what areas the attendant care is required. Without a Form 1 getting completed, you will not receive any attendant care benefits, unless you have a very kind and generous insurance adjuster.
The attendant care benefit is also now an “incurred expense“. This means that the service provider for the attendant care MUST be getting paid for his/her services. If a family member is providing the attendant care and is not getting paid for their services, or losing out on income in providing the attendant care services, then the insurer does not have to pay because the benefit has not been “incurred“. The reality is that this benefit favours wealthy people who can afford to pay their family members, over non wealthy people who may not have the disposable income. These laws also favour the gainfully employed over the unemployed, retired or disabled. That’s the reality of these laws, and they certainly aren’t fair. But that’s the way the laws are written.
What we see more of are professional attendant care services providers getting involved in the provision of attendant care. That way, there is no dispute between the accident victim and the insurance company whether or not the attendant care expense is incurred or not. This eliminates a potential barrier to recovery and also ensure that the attendant care services are being provided by a qualified professional. But just because a professional business is involved, does not always mean that benefits will flow.
