By Melissa Miller, Associate
On June 27, 2012, Justice Ray of the Superior Court of Justice ruled on the issue of “economic loss” as referred to in section 3(7)(e) of the SABS in Henry v. Gore Mutual Insurance Company as it related to Attendant care.
Attendant Care benefits are not payable to an insured unless the expense is incurred. In order for the expense to be incurred, the insured person must have paid the expense, promised to pay the expense, or otherwise be legally obligated to pay the expense. The person providing the attendant care must have “sustained an economic loss as a result of providing the goods or services…”. Economic loss is not defined in the SABS.
In this case, the insured was determined to be catastrophically impaired, which entitled him to a maximum of $6,000 per month of Attendant Care benefits. The insured’s mother was taking time off work to care for him. His monthly attendant care needs were assessed at $9,500 per month in a Form 1. The insured sought the full $6,000. The insurer used a very strict calculation – to compensate the insured’s mother proportionally for the time she missed off work in relation to how many hours she spent providing care in an 8 hour day. The insurer’s calculation of Attendant Care benefits was $2,117.40 per month.
Justice Ray clarified that the meaning of economic loss in the SABS is a threshold finding for incurred expense, “…it is not intended as a means of calculating the quantum of the incurred expense”. Once the family member or care provider stays home from work or loses income to provide reasonable and necessary attendant care and meets the remaining definition of “incurred”, all reasonable and necessary attendant care expenses must be paid to the insured as described in the Form 1.
While this decision opens a door for insured’s, it still leaves questions unanswered – Does the economic loss have to be ongoing? What actually constitutes an economic loss? The decision is currently under appeal.
At Howie, Sacks & Henry LLP, we help clients get the maximum benefits they are entitled to receive from their Insurer. For more information on the issue of Attendant Care benefits or on Accident Benefits, contact Melissa Miller at mmiller@hshlawyers.com, or 416-847-1063.
