In recent years, the Ontario legislature has slowly eroded accident victims’ access to Attendant Care benefits available under the Statutory Accident Benefits Schedule (SABS). Since 2010, an accident victim must either hire a professional caregiver or prove that his/her attendant has incurred an economic loss – such as lost income – while providing attendant care. Both requirements are fraught with complications. When attendant care in the form of supervision, emotional support, and intermittent assistance is required, it is difficult to hire a professional specifically for that purpose. Furthermore, family members who fill this role may find it difficult to prove a concrete economic loss. Many injured individuals who sustain severe injuries may require supervisory attendant care to ensure their “comfort, safety and security”. This type of care is rarely delivered by a paid professional – rather, it is spouses, parents and adult children who provide such “comfort, safety and security”. Two recent decisions have affirmed the role of technology for accident victims who receive attendant care by family members.
In Shawnoo v. Certas Direct Insurance Co. 2014 ONSC 7014, the court considered whether supervisory attendant care, cueing (using prompts to aid memory and provide instruction), and emotional support could be considered valid attendant care services when delivered in the form of voice calls or text messages. Ruling in the affirmative, the court took the attendant care concept into the digital age. Justice Garson affirmed that tools such as Facetime, text messaging and Skype can qualify as modes of providing attendant care services, opening the door for family members to obtain reimbursement for their wireless and other digital expenses to the accident benefits insurer.
In Watters v. State Farm (FSCO A13-006328), released on June 26, 2015, the issues in dispute included whether the injured applicant was catastrophically impaired due to head injury, and the amount and nature of attendant care that had been provided to date. This was a situation where the applicant required supervision to ensure her “comfort, safety and security”, amongst other things, due to such head injury symptoms as vertigo, memory problems, mental fatigue and copying with pain. In analyzing and awarding retroactive attendant care, the arbitrator heard and acknowledged the evidence that the applicant’s husband re-arranged his work schedule so that he could be at home as much as possible, and attend at his office when his wife was at appointments or when he knew that his children would be at home to supervise their mother. Furthermore,
“even when not physically present with the Applicant, Derek was in contact with her (primarily through frequent text messaging) and was providing supervision, guidance and support throughout the day, even while he was at work. While such “remote” attendant care services would not be appropriate in all cases (especially where an insured person is likely to be unsafe if left alone), it seems to have been a practical and effective (even if not ideal) method of providing some of the necessary attendant care services in this case.” (emphasis added)
The decision did not expressly opine or rule on whether specific expenses associated with the “remote” supervision were compensable, such as wireless charges, a cell phone provider contract, or lost opportunities for career advancement by the husband. But such expenses may have been implicitly acknowledged by the arbitrator, as he did rule that attendant care provided by the husband during the time periods at issue were compensable and had been incurred. In doing so, he referred in his reasons to the Shawnoo decision.
Unfortunately, in regards to attendant care provided by the Applicant’s university-aged daughter, who frequently provided emotional support, stayed home as much as possible when classes were not in session, and communicated with her mother via text message, the arbitrator found that these services were not “incurred” and hence not compensable. It is possible that there may have been an evidentiary gap in this aspect of the case.
Attendant care in the digital age, and other forms of non-traditional supervisory attendant care, has therefore been acknowledged by the judiciary and FSCO, and is a small step toward acknowledging that family members have their own unique ways of supporting their injured family members. The real challenge is overcoming the evidentiary requirements of proving an economic loss. Where an individual is catastrophic, however, reimbursement of wireless and internet charges may simply be a drop in the bucket. The Legislature introduced in February 2014 another onerous provision to the attendant care regime, restricting the amount of attendant care to the demonstrable amount of the incurred loss, rather than the universal Form 1 amount. For a brain injured individual that requires 12-hour or 15-hour daily “comfort, safety and security”, reimbursement of a $25 wireless bill is a pathetic reflection of the real costs incurred by the family.