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First Court Decision on definition of “incurred expense” for Attendant Care Benefits Released

The SABS were changed effective September 1, 2010, requiring that in order to recieve Attendant Care Benefits, and injured party must show that the care giver has sustained an economic loss, and that the expense has in fact been an “incurred expense“. That effectively means that if the care provider was unemployed before the accident, they would NOT be entitled to recieve any attendant care benefits, because no economic loss has been sustained.

What this change to the SABS has done, is effectively limited a family member’s ability to collect attendant care benefits, particularly if that family member was unemployed before the car accident, or a stay at home parent. The rationale is that the attendant care provider would have been at home anyways, so why provide them with any benefits.

These changes were brought on at the insistence of insurance companies. Certainly not accident victims.

In the Application of Henry v. Gore Mutual Insurance, the Honourable Justice Ray found that so long as the attendant sustains an economic loss, and the injured party pays, or makes a promise to pay, it does not matter how much that economic loss. Attendant care benefits are payable regardless.

In this case, the mother of a catastrophically injured accident victim took time off work as a retail mananger where she was making $2,100/month. Attendant Care Benefits were assessed at $6,000/month. Gore Mutual refused to pay the full $6,000. Instead, they paid $2,100/month because that was the economic loss sustained by the care provider. The Honourable Justice Ray ordered that the full amount of attendant care benefits be paid because there was no mention about the quantum of the economic loss being relevant, or requiring it to the proportional to the amount of attendant care benefits owing.

While this is certainly a good decision, it does not take away the fact that under the new SABS Regime, qualifying for an Attendant Care Benefit is difficult, and financially very difficult for the family as an ecomomic loss must be sustained (without any real guarantee that the insurance company will ever pay).

In addition, it would NOT surprise me one bit if the SABS were further amended at the request of the insurance industry to make a change to the wording of the SABS requiring proportionality between the amount of attendant care benefits paid, vis-a-vis the economic loss sustained to the care provider. The SABS have been changed ever since 1980, and each change has been at the request of, and in favour of insurance companies. The SABS are probably the only piece of legistlation which passes once every 2 years or so without issue. Just pray you don’t get into a bad car accident. Your accident benefits just get slashed time and time again by the Ontario government (regardless of the party)

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