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Posts Tagged ‘attendant care’

Providing Attendant Care in the Course of Employment, Occupation or Profession: Economic Loss Not Required

If an individual who is involved in a motor vehicle accident is incapable of self-care as a result of their injuries they are eligible to claim Attendant Care Benefits through their own insurance company.  The insurer is only obligated to pay the benefit if the insured person has received the goods or services, has paid or promised to pay the expense, and if the person who provided the goods and services either (A) “did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”, or (B) sustained an economic loss as a result of providing the goods or services to the insured person.  In the case of “B”, the amount payable has been limited to the amount of the economic loss sustained as a result of providing the attendant care.

The first option is normally interpreted as obligating an insurer to pay for a professional service to come into the injured person’s home to provide attendant care, such as a personal support worker.  The second option is normally interpreted as requiring an insurer to pay for any economic loss sustained by a “non-professional” (family member or friend) who provides attendant care to an injured individual.  But what if the family member or friend is a professional personal support worker?

In the Financial Services Commission of Ontario (FSCO) decision, Michael Walsh and Echelon General Insurance Company [FSCO A15-007448], Arbitrator Benjamin Drory confirmed that, if a family member or friend who is a personal support worker provides attendant care to an injured individual, they do not need to sustain an economic loss as a result of providing the attendant care and the amount of attendant care payable is not limited to the amount of any economic loss.

Arbitrator Drory made the following comments in this decision:

I find that a service provider falling into the (A) clause—i.e., one that did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged—does not need to establish economic loss for the purpose of these provisions. This appears to have been a deliberate effort of legislative drafting, and I accept that if the legislature had intended for the provision to read differently, it could have done so.

I also accept that the legislative intent behind these provisions, as advised to me by both parties, was an intention to prevent abuse of the attendant care benefit by family members who are not trained professionally to do it.

The sole question before me is whether the services provided by Mrs. Walsh to the Applicant were done in the course of the employment, occupation or profession in which she would ordinarily have been engaged. I find that the answer is yes, based on both the case law and the legislative intention presented to me.

He goes on to make the following analogy:

If a lawyer working for salary were to offer legal services pro bono to a cause they cared about outside working hours, would they cease being a lawyer during that time because they weren’t being remunerated for it? The answer would quickly be no—and I suspect many might even be offended at the suggestion. The question of what makes one a lawyer should consider one’s ability to be remunerated for it—but it also needs to take into consideration one’s acquired knowledge and skills relevant and/or necessary to the work, and any licensing authorities involved. One does not lose their skill set or status merely because they will not be remunerated financially in undertaking a particular task. I believe the question of what makes one a PSW is analogous—and is consonant with the decisions of Garson, J. and Arbitrator Fadel. I find it in harmony with the ordinary understanding of what it means to be part of a profession, and the common day-to-day usage of that term.

It also fits with the legislature’s intention to restrict access to attendant care benefits by untrained family members and friends reflected in the 2010 and 2014 amendments. Where a family member is a trained professional working in the relevant field, concerns respecting qualification seem to be directly addressed. It would seem odd, as a matter of public policy, to mandate that insureds with trained professionals in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable. As Arbitrator Fadel noted, there is no restriction in clause (A) of the Schedule that mandates a professional healthcare aide be arm’s length, nor do I find it appropriate to read one into it.

This decision can be read in its entirety by clicking here.

Change to Economic Loss Payment Not Retroactive: Court

A judge of the Ontario Superior Court of Justice has ruled that a change to the Statutory Accident Benefits Schedule (SABS) which became effective on February 1, 2014, does not apply to accidents prior to this date.

In the decision David v Wawanesa Mutal Insurance Company [2015 ONSC 6624], Quinlan J. considered whether Section 2 of Ontario Regulation 347/13 applies to accidents prior to February 1, 2014, when this regulation came into force.

In September of 2010 a change to the SABS allowed for non-professionals (e.g., family or friends) to be compensated for the attendant care that was provided to a person injured in a motor vehicle accident only if that non-professional suffered an “economic loss”.  The term “economic loss” was not defined.  The Ontario Court of Appeal later ruled, in its decision on Henry v Gore Mutual Insurance, that if a non-professional suffered an economic loss, they were entitled to the full amount of the monthly attendant care needs (Form 1) and that reimbursement was not limited to the actual amount of the economic loss.  In other words, once a non-professional established that an economic loss had been demonstrated, the full amount of attendant care benefit was payable as assessed.

In December of 2013 the Government of Ontario filed Ontario Regulation 347/13 to limit the amount of compensation for a non-professional to the actual amount of the economic loss sustained.  This regulation went into effect on February 1, 2014.  The regulation is silent on whether or not it is retroactive.

Quinlan J. states as follows:

[31]           Therefore, I accept the plaintiff’s position that attendant care benefits are a contractual right to which an injured person is entitled.  The contract of insurance between an insured and insurer creates rights and obligations, including the right to attendant care benefits.  As such, despite the fact that SABS are a government-legislated scheme, the treatment of other benefits bestowed by legislation and cases dealing with those benefits do not assist in deciding the issue before me.

[34]           The fact that legislation is remedial does not necessarily mean that it is intended to apply retrospectively (R. v. Evans, 2015 BCCA 46 (CanLII), 321 C.C.C. (3d) 130 at para. 33).  As the Court of Appeal held at para. 60 of R. v. Bengy, 2015 ONCA 397 (CanLII), 325 C.C.C. (3d) 22, if the need for immediate reform of the law were so pressing, why would the legislature not have explicitly made the law retrospective?  There is nothing in the record, including the explanatory notes, that demonstrates a clear legislative intent that the amendment is to apply retrospectively.

[35]           Accordingly, the presumption has not been rebutted and therefore applies.  I find that the plaintiff has a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident.

The decision can be read in its entirety by clicking on the link below:

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc6624/2015onsc6624.html

FSCO Announces Changes to SABS, Attendant Care Hourly Rates

The Financial Services Commission of Ontario (FSCO) has announced major changes to the Statutory Accident Benefits Schedule (SABS), effective June 1, 2016.

These changes include the following:

  • Medical and Rehabilitation Benefits, as well as Attendant Care Benefits, will be combined with respect to limits
    • For non-catastrophic claims, the maximum will be $65,000.00 for up to five years from the date of accident
    • For catastrophic claims, the maximum is $1,000,000.00, over a lifetime
  • Non-Earner Benefit – $185.00 per week, payable after four weeks but only to a maximum of two years following the accident
  • Catastrophic Impairment Designation – a whole new criteria for determining catastrophic impairment will be in force

FSCO has provided a new Attendant Care Hourly Rate Guideline, reflecting an increase to $11.25 per hour, effective October 1, 2015.

The Professional Services Guideline fees for 2015 remain unchanged from the previous year.

The bulletin can be read in its entirety by clicking on the link below:

http://www.fsco.gov.on.ca/en/auto/autobulletins/2015a/Pages/a-06-15.aspx

Costs for Examination for CAT Assessment, Form 1 Completion and Disability Certificate Not Out of Med-Rehab Limits

A recent decision by the Financial Services Commission of Ontario (FSCO) confirms that the costs for completion of a catastrophic assessment are not subject to the medical and rehabilitation benefit limits.

In Lee-Anne Henderson and Wawanesa Mutual Insurance Company [FSCO A14-001758], Arbitrator Patrick Bowles was asked to consider whether or not this was the case.  The Applicant, Ms. Henderson, had requested that the costs for the completion of a catastrophic assessment be paid by the insurer.  Wawanesa denied payment, stating that Ms. Henderson had reached the maximum payable for medical and rehabilitation benefits in the amount of $50,000.00, therefore there was no further benefits available to fund the assessments.

Arbitrator Bowles accepted Ms. Henderson’s argument that the only assessments that are subject to the medical and rehabilitation benefit limits are ones for the purpose of claiming a medical and rehabilitation benefit.  Since a catastrophic determination is not for the purpose of a benefit per se (rather, it is for a determination on the amount of benefits available), it is not subject to the limits, and should properly be allocated as a claims expense by the insurer.

While it was not directly considered in this decision, it follows that the costs for completion of an Attendant Care Needs Assessment (Form 1), as well as a Disability Certificate (OCF-3) are also not subject to payment under the medical and rehabilitation benefits, as they are for an attendant care benefit and for specified benefits, respectively.

If an insurer is claiming that the medical and rehabilitation benefits have reached the limits, it is helpful to obtain an itemized listing of all payments made to determine if any payments have been incorrectly allocated.  This could free-up additional funds that may be needed by an insured for treatment.

This decision can be read in its entirety by clicking on the link below.

Henderson, Lee-Anne and Wawanesa – COE for CAT not in MR benefit limits

FSCO Decision Reinforces Viability of Retrospective Attendant Care Needs Assessments (Form 1’s)

A new arbitration decision from the Financial Services Commission of Ontario (FSCO) affirms previous decisions that a retrospective attendant care needs assessment (commonly referred to as a “Form 1”) are viable.

In the decision Stephanie Kelly and Guarantee Company of North America [FSCO A12-006663], Arbitrator John Wilson affirmed that Ms. Kelly is entitled to payment for supplementary attendant care services, to be reimbursed for the cost for the Form 1 assessment, interest, and her expenses in the matter.

Ms. Kelly suffered catastrophic injuries and required one-to-one attendant care while in hospital.  Her family was, understandably, not in a position to know that a Form 1 was required to be completed to determine the amount of attendant care needs she required by use of a Form 1.  Once they were aware that one needed to be completed they retained an occupational therapist, who then completed a retrospective assessment.

In considering The Guarantee’s position that no attendant care benefit is payable prior to a Form 1 being submitted to an insurer, Arbitrator Wilson relied on a previous arbitration decision, T.N. and The Personal, wherein Arbitrator Bayefsky stated the following:

This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person’s need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment.

The decision can be read in its entirety by clicking on the link below.

Kelly and Guarantee

Bus Passes or Tickets constitute an “Economic Loss”: FSCO

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that confirms that the purchase of bus passes or tickets by a non-professional for the provision of housekeeping and home maintenance, as well as caregiving services and (arguably) attendant care, constitutes “economic loss” under the Statutory Accident Benefits Schedule (SABS).

On September 1, 2010, the accident benefits legislation was changed so that non-professionals (i.e., those who have not provided the services in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident) could only be reimbursed for the services they provided if they had incurred an economic loss.  The term “economic loss” was not defined within the regulations.

In the decision Asokumaran and TD Home (FSCO A12-007443) Arbitrator Susan Alves noted that it was submitted that the insured’s friend purchased bus tickets and/or passes to travel to the insured’s home.  Both parties agreed to submit to a preliminary issue on whether or not these expenses would constitute an “economic loss”.  The arbitrator did not address whether or not these expenses were incurred to provide the housekeeping and caregiver services and that issue will be decided at the main arbitration hearing.

What is clear from this decision is the rejection of a de minimis requirement (that is, that there is a possible minimum amount required for an economic loss argument to be established).  The insurer in this case relied heavily on a previous arbitration decision, Simser and Aviva Canada, which was generally restrictive with respect to broader-use definitions of what constitutes an economic loss.  Arbitrator Alves noted the following:

In Simser and Aviva Canada Inc., (FSCO A11-004610, January 16, 2013), the hearing arbitrator adopted the definition of economic loss from Black’s Law Dictionary and held that economic loss as applied in the Schedule must relate to some form of financial or monetary loss. This conclusion was not disturbed on appeal.
At the Simser hearing, the applicant had significant evidentiary difficulties in establishing the various losses claimed. For example, the hearing arbitrator described the evidence adduced at the hearing as vague and lacking in detail, lacking documentary evidence from the service provider’s employer, despite numerous requests from the insurer, and that there was a failure to link the expense or loss to the attendant care claimed. With respect to some of the out-of-pocket expenses, the arbitrator held that they were de minimis and therefore did not amount to economic loss.
I am not persuaded that the expenditure of $5,048 in this case is de minimis. The Court of Appeal in [Gore v.] Henry rejected any de minimis requirement for an expense to qualify as economic loss. On this point, on appeal, Delegate Blackman noted that the hearing arbitrator in Simser adopted the de minimis approach taken by the trial judge in Henry v. Gore Mutual. However, the arbitrator did not have the benefit of the Court of Appeal’s decision rejecting the de minimis approach at the time he issued his decision.
What is clear from these cases is that a loss of wages or a loss of income will qualify as an economic loss. I am not persuaded by the Insurer’s submission in this case, that the term economic loss should be read restrictively so that only those losses will qualify. Had the legislature intended to restrict economic loss to wage loss or loss of income, it could have so stated. Insurance coverage provisions are to be interpreted broadly, while coverage exclusions or restrictions are to be construed narrowly in favour of the insured.  In my view, the Applicant has demonstrated that funds were expended by her friend and service provider in the amount of $5,048 to purchase bus tickets and/or passes in order for her to travel to the Applicant’s home. The purchases involved the expenditure of funds by the service provider, were a monetary loss to her and therefore qualify as an economic loss within the meaning of the Schedule.

The decision can be read in its entirety by clicking on the link below.

Asokumaran and TD – Economic Loss

FSCO Increases Attendant Care Hourly Rates

The Financial Services Commission of Ontario (FSCO) has just released the updated hourly rates for attendant care for all accidents after June 1, 2014.  This applies to accident benefits claims.

Part 1 services (for routine personal care) will be $13.19 per hour.  Part 2 services (for basic supervisory functions) will be $11.00 per hour.  Part 3 services (complex health/care and hygiene functions) will be $19.35 per hour.

A copy of the guideline can be obtained by clicking below.

2014 Attendant Care Hourly Rate Guidelines

More Changes to SABS on February 1, 2014

The Government of Ontario has announced upcoming changes to the Statutory Accident Benefits Schedule (SABS), effective February 1, 2014.

These changes include:

  • A requirement that, in order for an insured with a minor injury to be considered outside of the Minor Injury Guidelines, documentation will need to be provided of, “…a pre-existing medical condition that was documented by a health practitioner before the accident…”
  • If a “non-professional” is providing attendant care, the amount payable by the insurer will be limited to the actual amount of the economic loss sustained.
  • Disallowing an insured to re-elect to a new benefit (income replacement, non-earner or caregiver) regardless of any change in circumstances.

The amendment can be reviewed in its entirety by clicking here.

Law Times Article Quotes Michael Smitiuch on Economic Loss issue for Attendant Care

The Law Times has published an article examining the current legal issue as to what constitutes an “economic loss” for family members and friends of individuals injured in motor vehicle accidents to be compensated for providing attendant care.

In September 2010 the Statutory Accident Benefits Schedule (SABS) was changed so that non-professional attendant care providers could only be compensated if they incurred an “economic loss” by providing the attendant care.  The SABS does not define what exactly is an “economic loss” and this has been the subject of vigorous debate between insurers and insureds.

The case of Henry v. Gore Insurance it was upheld by the Ontario Court of Appeal that an insurer cannot just compensate an attendant for the actual amount of the economic loss; rather, the insurer is bound to compensate the attendant for all incurred services in accordance with the amounts calculated by the Attendant Care Needs Assessment (Form 1).

In the October 14, 2013, Law Times article, the focus is now on the decision, Simser and Aviva Canada Inc., which is currently under appeal.  In this case the insured tried to broaden the definition of “economic loss” to include loss of opportunity, labour or leisure, which the arbitrator did not agree with.  Rather, the arbitrator took the position that there must be some type of monetary or financial loss.

If the Simser matter or some other case ever does reach the appeal court, Toronto personal injury lawyer Michael Smitiuch is confident any definition of economic loss would keep the threshold low to include people who give up part-time jobs or some of their work hours to provide necessary care for family members.

“Although it doesn’t specifically address the issue of economic loss, I believe Henry v. Gore supports the proposition that any time missed from work will constitute an economic loss. That would be consistent with previous case law which says insurance coverage provisions are to be interpreted broadly, not restrictively,” says Smitiuch.

The Law Times article can be read in its entirety by clicking here.

Henry v. Gore Upheld: Ontario Court of Appeal

The Ontario Court of Appeal has upheld the decision of Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, which found that an automobile insurer must pay an insured the full amount of attendant care benefits as set out in the Form 1 and is not entitled to take a proportional approach to the payment of this benefit. Gore Mutual Insurance argued that its liability for attendant care benefits was limited to the number of hours that the attendant care provider lost from work. Justice Ray did not agree with this approach and stated that a plain reading of the relevant section must be followed.

The Honourable Alexandra Hoy, who wrote on behalf of the Court of Appeal, stated the following:

Attendant care benefits are only payable in respect of the provision by a family member of care detailed in the Form 1 assessment of the insured’s attendant care needs if the family member sustains an economic loss as a result of providing such care to the insured.  If an economic loss is sustained, attendant care benefits are payable with respect to all care detailed in the Form 1 provided by the family member, subject to the maximums in s. 19(3) and various other safeguards, including ss. 42 and 33 of SABS-2010.  If no such loss is sustained, no attendant care benefits are payable in respect of care provided by the family member, even if the family member provides care that would otherwise be provided by someone in the course of their employment, occupation or profession and would necessitate the payment of attendant care benefits by the insured.  And to the extent that the economic loss sustained by the family member as a result of providing such care to an insured exceeds the maximum attendant care benefits stipulated in SABS-2010, the family member is not indemnified.

Please see our blog post on the trial judge’s decision by clicking here.

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