Attendant Care Benefits - Family Members & Professional Health Care Designations

Careful analysis of relevant case law dealing with family members claiming attendant care benefits pursuant to s. 3(7)(e)(iii)(A) of the Statutory Accident Benefits Schedule ["Schedule"] indicates that there are numerous factors to consider when determining eligibility. This case law examines whether a professional health care provider that is also a family member of the claimant (i) worked in that capacity at some point prior to the subject accident or at the time the attendant care services were provided; OR (ii) if not, he or she actively sought employment in that capacity at the time of the accident or at the time the services were provided.1 In addition, this case law reviews this family member's professional designation and credentials prior to determining whether the attendant care benefits are payable.

As always, the legal onus is on the claimant to establish entitlement to the benefits claimed. Also, the claimant has the burden of proving that coverage for the benefits is available.2

LEGISLATIVE HISTORY & INTENT

The relevant provision of the Schedule provides:

3 (7) For the purposes of this Regulation, (e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless, ... (iii) the person who provided the goods or services,

Did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, [Emphasis Added] or Sustained an economic loss as a result of providing the goods or services to the insured person; In other words, if the claimant's family member cannot provide proof of economic loss, he or she must demonstrate that the relevant services were provided "in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident" [Emphasis Added].

The decision in Josey v Primmum Insurance Co., states as follows:

"[t]he plain meaning of s. 3(7)(e)(iii)(A) is that a professional care provider (usually an arm's length individual) be reimbursed for services provided in the course of their employment, occupation or profession. This implies remuneration is an aspect of that service. Also, given s. 3(7)(e)(iii)(B), it is clear that the intention was that family members must prove they have sustained an economic loss in order to be reimbursed for attendant care services from the accident benefit insurer."3 [Emphasis Added]

The Schedule was amended for the very same reason to prevent family members from profiting from attendant care benefits. As stated in Josey, the amendments show:

"[D]istinct and deliberate shift in the determination of entitlement to attendant care benefits. There seems to be a concerted effort on the part of the Legislature to exclude family...