Insured Cannot Obtain Payments for Attendant Care Higher Than Rates Prescribed in the Accident Benefit Legislation

August 18, 2007, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Judge:  Justice J.A. MacFarland

Decision date:  December 21, 2006

Daly was seriuosly injured in a motor vehicle accident on January 28, 1994.  She was 16 at the time of the car accident.  She suffered a serious brain injury which entitled to attendant care benefits.  She required 24 hours care 7 days per week.  ING was paying to Daly the sum of $5,606.45 per month for attendant care. The insurer was making the payments in accordance with the Statutory Accident Benefit schedule (SABs).  It was clear that the actual attendant care required by the insured was $10,020.00 but this amount was not determined in accordance with the prescribed rates provided in the SABs for attendant care calculations.

The SABs provide that an insured is entitled to reasonable expenses incurred for services provided by an aide or an attendant, the SABs also provide that the amount to be paid by the insurer is determined by the Form 1 (the form used to calculate the amount of attendant care required) and the regulations under the SABs.

The judge considered the wording of the SABs, the use of the word "shall" several times in the relevant sections and concluded that the SABs provide the insured person with the right to argue for more hours of care or that the required care should be within a higher paying category.  An insured person cannot dispute the hourly rate for the services set out in the SABs nor the use of the Form 1 to calculate the amount of attendant care payable.  The judge also noted that the hourly rates set out in the SABs are fixed rates and there is no discretion to increase or reduce the rates.

The judge made reference to the "stacking" of benefits.  This was in the context of considering how one is to obtain a level of attendant care coverage that exceeds the amount available under the Form 1 calculation.  The judge noted the 2001 FSCO case of Alvarez and Liberty Mutual where the arbitrator noted that it is possible that two attendants may be compensated simultaneously for care due to the nature of a particular disability.

Posted under Accident Benefit News, Automobile Accident Benefits, Brain Injury, Car Accidents, Disability Insurance

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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