The Henry v. Gore Mutual Insurance decision is important because, as of September 2010, an insurer is not required to pay attendant care benefits unless (1) the service provider was providing attendant care in the course of their employment or (2) they incurred an economic loss in providing the service.
The second category (#2) has been the most contentious since people often have family members assisting with their care (one of the reasons is that it may well be hard to find someone to provide the amount of attendant care services needed with the money that is available-the other reason is comfort level of the patient and family – especially in the initial period).
Under the second category, there has been a question about what qualifies as an “economic loss” and how much of an economic loss is needed to qualify for payment of attendant care. As a for instance, if a cousin pays for a bus ride or spends gas to get to the injured party to provide attendant care – does that qualify?
In Henry v. Gore Mutual Insurance, a family member had taken an unpaid leave of absence from her 40 hour per week job in order to provide full time attendant care to a catastrophically injured family member. The insurer took the position that the family member was only entitled to be paid for 40 hours of attendant care per week, because of the definition of incurred and economic loss. The Court disagreed with the insurer.
The Court commented that “economic loss” was clear in this case given that the family member had taken an unpaid leave of absence from work. The more difficult scenarios (such as the family member taking the bus) are not entirely clear following the decision (although the court did make it clear that an “equivalent” economic loss is not necessary and as long as an economic loss has been sustained, that is enough). The Court declined to more broadly define economic loss, seeming to leave that to be decided on a case by case basis in the future (but the noted comments are helpful).