Attendant care has long been a debated and evolving process in Canadian courts. Applying specific cases to the law surrounding SABS, as well as adjusting to changes in the mordern world, such as the provision of care through technology, are recent ways that this issue has been addressed in the courts.
Here we take a look at a case; Simser v Aviva Canada and Fsco, 2015 ONSC 2363 where an insured’s claim for attendant care and housekeeping expenses was denied.
One of the main purposes of affording attendant care benefits to individuals is to provide financial coverage for any economic loss that a person may sustain as a result of an injury (long or short-term).
In the case in question, Mr. Simser was seriously injured in a motor vehicle accident in November 2010. His stay in the hospital was almost three months. His ex-wife and daughter who were both living in another area moved in with him allegedly to provide care and support as he required assistance with his personal care and everyday living tasks. This care was provided from February 2011 through to October 2011. Aside from his family, Mr. Simser also received landscaping care (specifically lawn care) from an associated business.
At the hearing, the only actual person to testify in an added attempt to validate their claim was Julie Simser (the ex-wife). She claimed that she lost ten hours of work a week and also missed out on opportunities to work overtime during the period in question. Howvever, she did not present any evidence (like signed testimonies) from her place of employment to attest to such.
Based on the evidence, the arbitrator found her claim wanting and her credibility questionable.
Julie Simser also spoke of a claim on behalf of her daughter Kasey Simser during the hearing as well. She claimed that her daughter missed school as a direct result of the care she had to provide for her father. Again no evidence was made available to support that claim (nothing in writing from the school about tardiness or absenteeism), and Kasey Simser herself did not appear to testify.
This did not lend any credibility to the claim since the person in question herself did not turn up to defend the claim.
The company who allegedly offered lawn care services to Mr. Simser had no one present to testify either. Instead, vague generic invoices and documentation was sent as evidence to show what services were supplied. The insurance company’s attempts to verify the business itself were futile.
The insurance company decided to reimburse Julie Simser for some out of pocket expenses she incurred while providing care services to her ex-husband (both in the hospital and when she resided at his home). Roughly $50 accounted for the amount awarded for her services at his home.
The discord to be addressed here arose from the definition of “economic loss” and how it should be applied to this case. An expert witness provided by the plaintiff defined different types of economic loss in relation to loss of income, time and leisure. Specifically, the expert felt that loss of time was in fact an economic loss based on the theory of opportunity cost (which is the forgone value of the alternative use of a resource). The time Julie Simser spent providing care for her husband did not allow her to do a number of other tasks that could have generated income, or contributed to her livelihood.
The arbitrator however disagreed and felt that economic loss as it pertains to the Statutory Accident Benefits Schedule Reg (SABS) refers specifically to a financial/monetary loss. It did not pertain to “loss of time” as that was a natural effect that would minimize the true intent of the law if recognized in that manner.
Based on the preceding cases that have been tried in and out of the Supreme Court, it was seen that the arbitrator’s ruling and application of economic loss as it pertains to the law was indeed accurate and the plaintiff’s application for judicial review of the matter was dismissed.
It is important that you contact a personal injury lawyer as soon as you are able after an injury. Ensuring that your rights are protected from the onset will help ensure that you are fairly compensated in a timely manner. Call us at Rastin & Associates today for a free initial consultation on your case.