The claimant sought entitlement to attendant care benefits in the amount of $6,000 per month from the date of loss to the date of the subject hearing. The claimant was involved in a single vehicle accident on July 8, 2021, in which he sustained a left subdural hemorrhage and various fractures. At the time of the subject hearing, no determination had been made as to whether the claimant sustained a catastrophic impairment. Accordingly, he was considered non-catastrophically impaired. The claimant submitted a Form 1 in October 2021 indicating that he required attendant care benefits in the amount of $10,288.15 per month. The respondent approved the Form 1 and agreed to pay attendant care benefits up to $3,000 per month, provided that the claimant submitted proof of incurred expenses pursuant to section 3(7) of the SABS. The claimant received attendant care services from PSWs and submitted six invoices from October 2021 to January 2022. The hourly rate of the PSWs was $33.50 per hour. The respondent partially approved the invoices, refusing to pay the full amount on the basis that the invoices did not contain the particulars required to substantiate that services had been incurred for the purposes of section 3(7)(e)(i) of the SABS. The respondent argued that the invoices must detail what was done on each day and for how long, to allow for identification of the actual services to which the expenses relate. Pending receipt of particulars, the respondent relied on the ratio method outlined in Malitskiy to partially pay the invoices. The claimant took the position that the ratio method set out in Malitskiy did not apply in this case because the decision addressed an accident that took place in 2014, before the Bulletin and FSCO Attendant Care Hourly Guideline was introduced. The claimant further argued that it was a fair and reasonable expectation for the respondent to pay the full amount of the invoices up to the applicable policy limit. Adjudicator Jarda found that the claimant had not demonstrated, on a balance of probabilities, that the claimant had incurred the full balance of the invoices submitted for attendant care from October 2021 to January 2022, totaling $4,429.06. Adjudicator Jarda did not agree with the applicant’s interpretation of the Guideline, and held that the Tribunal did not have authority to require an insurer to pay an hourly rate for attendant care greater than the hourly rates set out in the Guideline. Further, Adjudicator Jarda found that the claimant had provided insufficient evidence to support that attendant care services had been incurred pursuant to section 3(7)(e) of the SABS. It was well established that in the absence of particulars, an insurer could apply the ratio method outlined in Malitskiy in order to provide an insured with an interim payment, pending receipt of particulars. Accordingly, the claimant was not entitled to the full balance of the invoices submitted for attendant care. However, Adjudicator Jarda found a discrepancy in the amount of attendant care benefits paid by the respondent to the claimant under the ratio method. The respondent did not include the amount payable for HST for two of the disputed invoices. As a result, she found that the claimant was owed attendant care benefits in the amount of $86.74, plus interest, for the period of July 8, 2021 to the date of the subject hearing.
