Since the amendments to the Statutory Accident Benefits Schedule (or “SABS”) on September 1, 2010, the subject of “incurred expenses” has been an ongoing discussion. This is an important issue to individuals who have been injured in a motor vehicle accident because it affects what may be claimed from their own insurers. Section 3(7)(e) of the SABS sets out when an expense is “incurred”, as follows:
(1) The insured person has received the services;
(2) The insured person has paid or promised to pay or is legally obligated to pay the expense;(3) The person who provided the goods or services:
(i) Did so in the course of the employment, occupation or profession in which he or she was ordinarily engaged, but for the accident; or
(ii) The person sustained an economic loss as a result of providing those goods or services to the insured person.
Attendant care was addressed in the Arbitration Case of Kevin Simser and Aviva Canada. In this particular case, the dispute is limited to part (3). The arbitrator agreed with the insurer and found that “economic loss” as applied in the SABS must relate to some form of financial or monetary loss. Here the service provider continued to work at her normal job and had no documented evidence to show an actual economic loss. The only documented evidence for any incurred expenses were a few receipts for gas, parking and restaurant invoices.
What if the attendant care provider actually did leave his or her job to provide the service? For example, at least one parent of a catastrophically injured child is likely to leave his or her job to care for the injured child. Pay stubs showing his or her income prior to the child’s injury would be the documented evidence the insurer would require. Someone who provides the attendant care services in the course of employment, occupation or profession could provide marketing materials, business cards, diplomas or financial documents.
Attendant care is calculated in accordance with a completed SABS Form 1 and paid up to a maximum of $3,000 per month for non-catastrophic cases and $6,000 per month for catastrophic cases. Cases deemed to be in the Minor Injury Guideline (or “MIG”) are not eligible for any amount. In Henry v Gore Mutual Insurance Company, 2012 ONSC 3687, the judge determined the quantum of attendant care payable based on the Form 1 calculations and not based on what the actual lost monthly income was. Accordingly, even if the lost income from employment was only $1,500 per month and the Form 1 calculated attendant care required at $3,000 per month, the Form 1 calculation is what the insurer is obligated to pay.
Retro-active attendant care is also payable. A completed SABS Form 1 based on medical evidence must be submitted. The insurer will likely perform a paper review in accordance with section 44 of the SABS and the insurer is then obligated to pay.
What is the lesson learned? Be sure to have documented evidence to back up your “incurred expense” or the insurer is not going to pay.
Nicholson Gluckstein Lawyers