Adequacy in Attendant Care Benefits

What is attendant care?

A person who was seriously or catastrophically injured in an accident may need to hire an aide, or they may need to reside in a long-term care health facility or hospital.  The cost of attendant care will vary with the type of professional that is needed, whether it is institutional care or home care, how many hours of daily care are needed, in addition to other factors.    In the case of catastrophic impairment, an injured person may require significant full-time care for the rest of their lives, at a substantial cost for the accident victim and their family. 

How may an accident victim obtain compensation for the costs of attendant care?

Attendant care costs may be claimed by any seriously injured person in a civil suit against the negligent party responsible for causing the injury.  The seriously injured victim of any type of accident, including slip, trip and fall accidents, motor vehicle collisions, medical malpractice and recreational accidents, may be entitled to attendant care damages.

Motor vehicle accident victims are also able to claim compensation for attendant care costs under the statutory accident benefits available through their vehicle insurance policy.  This benefit is available to everyone in Ontario, regardless who was at fault in causing the accident.  Pedestrians, cyclists and passengers injured in a motor vehicle accident are also eligible, and uninsured persons may claim under a driver’s policy.

Claiming the attendant care benefit under your automobile insurance policy

Under the Insurance Act statutory accident benefits schedule (SABS), accident victims who suffered a catastrophic impairment are currently eligible to receive up to $6,000 monthly up to a lifetime maximum of $1 Million.  Individuals who were seriously injured may receive up to $3,000 monthly to a maximum of $72,000. All of the expenses claimed under this benefit must be considered ‘reasonable’ and necessary to qualify for this coverage.

On June 1, 2016, there will be a reduction in the amount of SABS benefits available for persons with a catastrophic impairment.  Currently, individuals meeting this most severe threshold of injury are eligible for a maximum of $1 M for medical/rehabilitation benefits and $1 Million for attendant care. The available benefit will effectively be halved; a person is now only able to claim up to a total of $1 Million combined for medical, rehabilitation and attendant care expenses.

This reduction is another change that continues a trend towards reducing access to needed care under SABS.  In 2010, an amendment took effect, requiring accident victims to hire a professional caregiver or prove that the attendant, for who they are claiming costs, incurred lost income while performing this function. SABS states that to qualify, attendant care must be provided in the course of employment, occupation or profession in which the provider would ordinarily would have been engaged, but for the accident.

What is problematic with this approach is that attendant care often involves intermittent assistance and a wide variety of duties, and it is difficult to hire a professional who specializes in this role.  In most cases, family members perform this function and it can be challenging if not, impossible for them to prove financial loss.  In February 2014, the eligible amount for attendant care was further restricted to the demonstrable amount of the sustained loss, replacing the universal Form 1 amount.

In Shawnoo v. Certas Direct Insurance Company, 2014, a woman who suffered catastrophic brain injury applied for attendant care benefits for her mother.  Her mother was a qualified personal support worker who, after the accident, was providing supervisory care to her daughter both in the home and remotely. However, as the mother was not employed in the two years prior to Ms. Shawnoo’s accident, the court ruled that, with respect to the February 2014 SABS amendment, the mother did not qualify for benefits because she could not demonstrate an economic loss associated with the care of her daughter. 

Attendant care included in future cost of care damages

Contrary to the seeming downward trend in benefits allocated for attendant care through automobile insurance claims under SABS, the size of awards for cost of future care (including attendant care) received by plaintiffs in civil suits has increased in Canada over the past two decades.  The following cases demonstrate some of the substantial future care awards allocated to accident victims who sustained catastrophic injuries in recent years.

MacNeil v. Bryan, 2009:  The plaintiff was awarded $15,158,500 for future care costs, including costs for medical, rehabilitation and attendant care, out of a total $18,427,207 in damages.  The claimant was a 15 year old passenger involved in a collision which resulted in a full frontal skull fracture and severe traumatic brain injury as well as other injuries.

Gordon v. Greig, 2007: Two men in their 20’s suffered catastrophic injuries, including traumatic brain injuries and spinal injuries, as passengers in a rollover car accident.  One of the young men was awarded almost $11.4 Million in damages which includes $8,646,900 for the cost of his future care and attendant care; the other was awarded $8,880,000 for cost of future care and attendant care, out of almost $12.5 Million in total damages.

Sandhu v. Wellington Place Apartments, 2006:  At the age of two, the plaintiff fell five stories through the screen of an apartment window and as a result, suffered a permanent frontal lobe brain injury as well as multiple fractures. The young boy will require full time care for the remainder of his life.  Out of more than $17 Million in damages, the jury awarded the plaintiff $10,942,908 in future care costs, the bulk of which is allotted for attendant care costs.      

The philosophy behind a fair determination of future care costs is that the injured person should be returned, as much as possible, to the position that they would have been in if the accident had not occurred.  However, the award should be ‘reasonable’ and is not intended to be a windfall for the heirs of the plaintiff, once he/she is deceased.

One of the issues that has the greatest impact on the cost of attendant care is whether or not the injured person should receive this care in their home or in an institution.  For plaintiffs who suffered severe brain injury and require 24-hour supervision and care, the cost of residing in a health care facility is generally only a fraction as much as professional care in the home.  The key factors that are considered in the decision of home care vs. institutional care are: the level of awareness of the plaintiff; their likelihood of improvement; quality of care that can be made available in the home vs. medical institution; where the patient would have a greater quality of life; continuity of care; and the impact on family members (particularly if care remains in the home). 

Clearly, for anyone who was catastrophically injured in an automobile accident, the car accident benefits available under SABS may in many instances be insufficient to provide attendant care, particularly when individuals are injured at a fairly young age and may need many decades of care.  The potential inadequacy of SABS benefits for individuals with high care needs will become even more pronounced in June, 2016, when medical/rehabilitation/attendant care expenses are capped at $1 Million over a lifetime.  For individuals who were catastrophically injured in any type of accident, the increasingly better option for receiving adequate and just compensation for attendant care is through a tort action against the negligent party.