24/7 Attendant Care Not Reduced by Time Spent at Medical Appointments

T.N. v. The Personal Insurance Company, FSCO A06-000399, July 3, 2012

MVC October 29, 2000. Decision on a motion for interim benefits. The insured sustained catastrophic injuries. The Insurer paid some attendant care benefits. The quantum of those benefits was in dispute. The Arbitrator considered the evidence and medical opinions of the Insurer’s treatment providers and determined that the Insured required 24/7 attendant care. The Insurer was ordered to pay the additional monthly attendant care sought.

The Insurer then sought to reduce the attendant care payable by the number of hours per week the Insured attended rehabilitation appointments. The Arbitrator rejected this approach. Medical and rehabilitation benefits are provided under separate sections of the SABS than that which provides attendant care benefits. Each type of benefit serves a different purpose. The Legislature could have worded the SABS differently to permit the deduction but absent that clear wording no deduction can be made. Permitting the interpretation sought by the Insurer could require an Insured to choose between receiving attendant care assistance and receiving treatment. Attendant care and treatment are not mutually exclusive.

Why is this case important? Attendant care benefits are equally as necessary as med/rehab benefits for the care and rehabilitation of an injured person. An Insured need not engage in a constant evaluation between which service at any given moment would provide greater short term and long term gain.

The approach sought by the Insurer in this case would require further Insured and Insurer efforts to ensure that the monthly amout paid is correct. The amount to be deducted would fluctuate from month to month based on attendance at medical appointments.

Finally, if the Insurer’s argument were accepted then it would open the door to a number of possible deductions such as hours when the Insured attends school, a graduated return to work program or other activities where she could be considered to be “supervised” simply because other adults are present. This case closes the door on that possibility.

Prepared by Karen Hulan

khulan@wallacesmith.ca