After a serious car accident, the injured party will often need care. They will need assistance with some, or all of their activities of daily living. These may include such activities as dressing, bathing, feeding, grooming, transfers, transportation, toileting, shaving, and cleaning.
There is value at law to all of these services, which are very necessary following a serious accident.
The benefit available in such a case is called an Attendant Care Benefit. Attendant Care Benefits are paid at a rate of $1,500/month in Non-Catastrophic Cases, and $3,000/month in Catastrophic Cases.
The amount of level of attendant care is determined by an Occupational Therapist who completes an In-Home Occupational Therapy Report and something called a "Form 1". The Form 1 sets out the amount of care required for the accident victim. Some accident victims only require 10 hours of care per week, others require 24 hour a day, 7 day a week care. The amount of hours of care required will determine the amount of funding required for the care from the insurance company.
Like a Treatment Plan (OCF-18), the insurance company again reserves the right to deem whether the Attendance Care is "reasonable and necessary". If the insurance company deems the care to be "reasonable and necessary", then the benefits will get paid. If the insurance company does not deem the care to be "reasonable and necessary", then the care will not get paid.
A signed and executed OCF-6 Expense Claim Form also needs to be submitted to the insurance company to claim this benefit. Your personal injury lawyer can help you with this form.
One of the big changes to the Attendant Care Benefit in recent years is the new requirement to show the insurance company that the benefit has been " incurred". The meaning of the term "incurred" has yet to be clearly defined by the Courts. But, it has made it much more difficult for accident victims and their families to claim this benefit.
"Incurred" has been found to mean that the injured party must actually have paid their family for their services. A promise to pay won't do anymore. This means that an injured party will actually need to pay their family members $1,500/month for their services, and prove this to the Court. This is very difficult to prove, and what family actually has that sort of money to pay for these services? Very few.
In addition, the person providing the attendant care services to the accident victim needs to prove that they have sustained a financial loss in the provision of such services. This means they need to show that they have actually taken time off work and LOST wages or money in providing these services.
These are two major hurdles to accident victims which did not exist before September 2010 in claiming an Attendant Care Benefit. Accordingly, the Attendance Care Benefit is a very difficult benefit to recover under the new law.
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