Cases highlight expansive approach to attendant care services

Two cases dealing with attendant care services support a broader application of what constitutes an “incurred” attendant care expense while also commenting on the nature of how such care is delivered in the digital age, Ottawa personal injury lawyer Najma Rashid writes in Lawyers Weekly.

Rashid says the decisions – Futrell and State Farm Mutual (FSCO file no. A13004179) and Shawnoo v. Certas Direct Insurance Co. [2014] O.J. No. 6213 – are notable as they highlight an expansive approach when it comes to attendant care.

In Futrell, Arbitrator James Newland found that gas and mileage expenses incurred by the insured’s husband constituted an economic loss in the course of his provision of attendant care to his wife, despite the insurer’s argument that the expenses did not relate to services set out in the Form 1, writes Rashid.

“The arbitrator ruled that it was ‘clear’ he provided extensive attendant care to his wife, inside and outside the home, which was necessitated by her medical condition, her need for social re-integration, and her driving phobia,” Rashid, a partner with Howard Yegendorf & Associates LLP, writes in Lawyers Weekly. “The arbitrator also held that the expenses ‘clearly fall within the plain English meaning of economic loss.’”

Shawnoo, says the article, dealt with incurred attendant care expenses sought by a mother providing care to her daughter. The case touched on, among other things, whether care that’s provided digitally – over text message or emails, for example – is considered attendant care, says Rashid.

“The court found that ‘indirect’ attendant care can be provided in this digital format, as supervision does not require the provider to ‘stand over the insured’ at all times,” she says in the article. “The court took a liberal and modern approach to defining ‘attendant care.’ As Justice (Marc) Garson wrote, ‘We live in a world where we can Skype our relatives across the planet and appear in court by way of closed-circuit television or telephone.’ Just as legal services are now often electronic, medical services (i.e. Tele-Health) are also being provided by phone and virtually.”

Both cases deal with accidents that occurred before February 2014, writes Rashid, noting after that date, the SABS were amended so that the amount of the attendant care benefit now payable cannot exceed the amount of the economic loss sustained by the attendant care provider while, and as a direct result of, providing the attendant care.

“While the threshold for attendant care remains an economic loss, the amount of the attendant care payable is now considerably restrictive — i.e. the cost of parking or mileage — even where the insured’s assessed Form 1 needs are at the statutory maximums,” she writes.