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Posts Tagged ‘Form 1’

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

Attendant Care and Treatment can be Claimed Simultaneously

A recent decision by the Financial Services Commission of Ontario (FSCO) confirms that an insurer cannot necessarily deduct attendant care benefits from times when a claimant is receiving medical or rehabilitation treatment.

In Ms. T.N. and The Personal Insurance Company of Canada [FSCO A06-000399] the Arbitrator Suesan Alves stated the following:

The Personal submitted that it should be permitted to deduct chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker treatment from any award of attendant care benefits. I disagree.

The benefits that The Personal seeks permission to deduct are provided under section 14 and 15 of the Schedule. Attendant care benefits are provided under section 16 of the Schedule. Each section of the Schedule provides for different and distinct services.

The focus of the Schedule is to provide services which meet the needs of an insured person. Under the statutory scheme, an insured person is entitled to medical, rehabilitation and attendant care benefits based on the criteria of need or necessity and reasonableness. In this context, it seems an odd concept to contemplate deducting one equally necessary benefit from another. If that were permissible, then an insured person would be required to choose, for example, between receiving assistance with a bath from his or her attendant, or receiving a physiotherapy treatment.

I am not persuaded that double payment would result from the provision of both attendant care and medical and rehabilitation benefits. Although the Form 1s filed by the Applicant contemplate the provision of attendant care 24 hours per day, 7 days per week, the rate prescribed for care in the completed forms is $7.00 per hour. Effective March 31, 2010, the minimum wage in Ontario became $10.25 per hour.

In a letter dated October 9, 2008, the claims handler informed counsel for the Applicant that the cost of the services of a certified support worker from a private agency which provides attendant care services in Ms. N’s area is $21.00 per hour. If Ms. N purchases attendant care services from that agency, she will be able to purchase approximately eight hours of attendant care per day.

I do not see attendant care and treatment as being mutually exclusive. Had the Legislature intended to permit the deduction of medical and rehabilitation benefits from attendant care benefits it could easily have done so expressly. For these reasons, I am not persuaded that the Legislature intended that other benefits would be deducted from attendant care. For these reasons, I reject The Personal’s submission that I permit the deduction of chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker from any award of attendant care benefits.

Amount of Attendant Care Payable is NOT Limited to the Extent of the Economic Loss Suffered

A recent decision delivered by Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, 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. In the decision, Justice Ray stated the following:

A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured – and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured as described in the Form 1.

The decision can be read in its entirety here: Henry v Gore Mutual Insurance Company, 2012 ONSC 3687

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