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Accident victims enter legal minefield when caregivers are family members

Families of accident victims should seek counsel before traversing the minefield of legislation and regulations that govern insurance coverage, says Toronto personal injury lawyer Jessica B. Mahabir.

People who try to care for family members on their own can quickly find themselves in a "very hard-to-win situation" in trying to get financial coverage or reimbursement from an insurance company, Mahabir, a lawyer with Derfel Injury Lawyers, tells AdvocateDaily.com.

"It's very confusing, and many people struggle to wrap their heads around what benefits are available to them," she says.

"It's especially difficult for family members who have put in many hours looking after their loved ones before speaking to a lawyer, only to find that it's not compensable.

"It's disheartening," Mahabir says.

She says families should have legal counsel in cases of serious injury because legislation and regulation surrounding accident benefits are "unintelligible" to the average person. 

"It's changing all the time," she says. "Especially after an accident, that's the last thing you want to comb through."

Mahabir says a recent case involving a 70-year-old man seriously injured in a collision serves as a warning to families. He was cared for by his wife, a qualified personal attendant working at a seniors' home, but that didn't merit financial assistance from their insurance firm.

In the case, a Licence Appeal Tribunal adjudicator ruled the Statutory Accident Benefits Schedule is designed to prevent compensating familial care unless the caregiver loses time from work or sustains an economic loss.

The caregiver in the case worked three days a week at a seniors' home and then cared for her husband for the other four days without sustaining an economic loss. The 70-year-old applicant claimed compensation for his wife providing care for him for two years, but the insurance company denied it. 

"This is precisely the type of work that the Legislature attempted to disqualify from compensation under s. (7)(e)(iii)(A) when it amended the Schedule in 2010," the adjudicator wrote in his ruling. "The fact that the applicant’s wife is professionally accredited does not change this disqualification. She is a professional, but her service was not rendered in her professional capacity."

He ruled the applicant is entitled to attendant care benefit but his wife didn't sustain an economic loss in providing her service.

"She is a family member who took time to care for her ailing husband – and she happens to have professional qualification for the service she provided," he ruled. "However, s. 3(7)(e)(iii)(B) requires that the applicant show that his wife sustained an economic loss as a result of providing her service. There is insufficient evidence of such economic loss in light of the factual conclusions I have drawn."

Mahabir says based on the legislation as it's written the wife did not suffer any economic loss and the care she provided for her husband "has no compensable value."

She says if the husband hired someone with the same qualifications who wasn't his wife, the insurance company would have paid the assessed monthly fee of almost $800.

"Even though this is something that she was qualified to do, trained to do, and this was her profession," it didn't fall within the bounds of the legislation, Mahabir says.

Prior to legislative changes in 2010, a family member could have been paid to care for the injured party without incurring an economic loss. But Mahabir says the insurance companies balked at losing money and the potential for fraud and lobbied for legislative change.

"Insurance companies felt family members were getting a windfall in these situations, since, in their view, someone who would have been looking after the victim anyway was being paid," she says.

Another legislative rewrite followed in 2014 after the Henry v. Gore Mutual Insurance ruling. In that case, Ontario Superior Court of Justice Judge Timothy Ray decided "if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured — and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured …"

Mahabir says she understands insurance companies wanting to keep costs down and preventing fraud but argues the legislative changes impact lower-income families more significantly than those with a higher income.

"There is also a cultural aspect for some of my clients. In lower-income or immigrant families, they are tight knit and don't want to, or can't afford to hire someone from outside to care for a relative who's injured," Mahabir says.

In legitimate cases where care is warranted and an insurance company will pay an outside person, hiring someone can often prove more beneficial to the injured victim's recovery, she says.    

In addition, "they'll often receive a higher level of care and preserve the relationships with those they are closest to," Mahabir adds. "It could be very wearing on a relationship to have to look after someone they care about."

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