Attendant Care Services and Family Members

If you or someone you know has been hurt in a car accident here in Canada, you may have firsthand knowledge of the challenges not only with physical recovery, but with the financial battle that ensues thereafter against the insurance company. It is a process we know all too well at Gluckstein Lawyers; we have years of experience helping clients get their rightful compensation.

Here, we take a look at an actual case where a judgement on the request for attendant care services is to be decided. The circumstances surrounding this case are quite common with seriously injured victims and will shed a light on some of the legislature surrounding attendant care benefits.

Case example

In the case of Shawnoo v. Certas Direct Insurance Company, a then twenty year old Ms. Shawnoo was involved in a serious motor vehicle accident in mid December of 2010. She suffered a catastrophic brain injury and had been covered via the Statutory Accident Benefits (SAB) through her insurance company (Certas Direct Insurance Company).

As a direct result of her injuries from the accident, she has needed continuous monitoring and care because she has developed dangerously impulsive tendencies (some of a suicidal nature).

Ms. Shawnoo's mother Cheryl Benn was at the time certified as a healthcare aide (personal support worker) who hadn't been employed in that field for roughly two years prior to the accident. She was unemployed at the time of the accident and she was also receiving assistance from the Ontario Works programme at the time of the accident. Mother and daughter lived apart, and Ms. Benn was at the time physically assisting a relative who had schizophrenia (as an unpaid favor).

Ms. Shawnoo had a roommate at the time of the accident (Ms. Chenoa Plain) who was certified as a child and youth worker. Because of the physical challenges since the accident, the previously self sufficient Ms. Shawnoo was now dependent on others to help her throughout the day, specifically her mother and roommate. They had both done so physically and electronically (texting, video calls) throughout the time period.

It was agreed that neither Ms. Benn nor Ms. Plain suffered any economic or financial loss during their contribution of care to Ms. Shawnoo. What was in question before the progression of a trial was whether or not Ms. Plain and Ms. Benn were entitled to receive attendant care benefits for the services they provided to Ms. Shawnoo.

The recent amendments to the SAB in 2010 have restricted and limited the compensation that family members are entitled to for the care they provide to accident victims. Its proclaimed aim is to prevent the abuse of the system by those seeking financial compensation for tasks that would normally be done out of love and without any major impact to the life of the family member offering the care.

The Judge examined each individual's contribution (Ms. Benn and Ms. Plain) and the impact that it had on their lives and concluded the following:

• At the period of time in question, Ms. Benn (the mother) was not working. She was freely assisting another family member and could not provide any proof of economic loss. Her physical circumstance did not change as she and her daughter were living apart and she was not the breadwinner of her daughter's household.
• Ms. Plain (the roommate) was not a certified healthcare assistant and could not be lawfully compensated for providing these types of services under the present regulations within the attendant care benefits act.
• The help and support offered electronically (phoning, texting, video-calling); there is no specific law governing compensation for these types of communicative help. What legislation that is available however, does allow for an interpretation that any help offered electronically can be as valid as physical help.

It is important that you are aware of your rights and the laws governing financial remuneration after an accident. Allow us at Gluckstein Lawyers to help you through the legal maze towards obtaining peace of mind during this time.