Daughters from foreign country showed they suffered economic loss and provided attendant care services to mother.

May 17, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Arbitrator James Robinson

Date of Decision: March 26, 2013

 

REASONS FOR DECISION

 

Introduction

 

Ming Guo was injured in a car accident August 18, 2011 while visiting Canada from her homeland in China. As a result of her injuries she was unable to return home on her scheduled flight. She was released from hospital and was looked after by her two daughters who were also visiting from China in a rented basement apartment.

 

She applied for statutory accident benefits from the insurer, State Farm Mutual.  State Farm disputed Mrs. Guo’s entitlement to attendant care benefits on the basis that she did not receive the services and that they did not constitute “incurred expenses”. The parties were unable to resolve their disputes through mediation, and Ms. Guo applied for arbitration at the Financial Services Commission of Ontario.

 

The issues in this hearing are:

  1. Did Mrs. Guo receive attendant care services from August 18, 2011 and ongoing?
  2. If she did, do those services constitute “incurred expenses” within the meaning the Schedule?
  3. Is State Farm liable to pay Ms. Guo a Special Award because it unreasonably withheld or delayed payments?
  4. Is State Farm liable to pay Ms. Guo’s expenses with respect to this arbitration?
  5. Is Ms. Guo liable to pay State Farm’s expenses with respect to this arbitration?

 

Mrs. Guo argues that her daughters did incur an economic loss as they were unable to return to China to paid work awaiting them there where they would have lived rent free and enjoyed their incomes as discretionary funds. Mrs. Guo also argues that here daughters suffered economic loss because each had been compelled to forego income from legal employment while here in Canada where they had been granted student visas. One daughter however, admitted to working part time illegally for cash. She eventually had to give the work up to be able to care for her mother. The third argument raised by was that the daughters had suffered economic loss because they had incurred expenditure by providing an apartment and maintaining a household in order to support their mother while she recovered from her injuries.

 

State Farm argues Mrs. Guo’s entitlement to attendant care benefits on the basis that they were not “incurred” within the meaning of subsection 3(7)(e) of the Schedule, specifically that her daughters did not sustain an economic loss while caring for her.

 

The Arbitrator reviewed Mrs. Guo’s case and the testimony of her daughters and was satisfied that they provided her attendant care for two years following the accident. They were promised payment for their services. The Arbitrator reviewed the evidence before him and was satisfied that the daughters did indeed sustain an economic loss by looking after and supporting their mother. The Arbitrator found that the requirements of clauses 3(7)(e)(i) and 3(7)(e)(ii) of subsection 3(7)(e) of the Schedule are met in this case.

 

The Arbitrator was not satisfied that State Farm acted in a manner which would result in a Special Award being made.

 

Result:

 

  1. Ms. Guo received attendant care services from August 18, 2011 and ongoing.
  2. The attendant care services were “incurred expenses” within the meaning of the Schedule.
  3. Ms. Guo shall be paid attendant care benefits by State Farm in such amount as the parties may mutually have agreed.
  4. State Farm did not unreasonably withhold or delay payments to Ms. Guo.
  5. Ms. Guo shall not be paid a Special Award.
  6. State Farm is liable to pay Ms. Guo’s expenses with respect to this arbitration.
Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Fractures, Paraplegia

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About Deutschmann Law

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 www.deutschmannlaw.com 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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