Category: Attendant Care Benefits

The applicant disputed entitlement to, inter alia, ACBs in the amount of $2,250.00 for invoices during the period of February 1 to 28, 2022. The respondent noted that it had requested written confirmation as to the fee breakdown, as the submitted hourly rates were well beyond the allowable hourly rate under the Guideline. The applicant had filed an invoice from the AC provider, New Age, which noted an hourly rate of $45.00. The respondent noted that it had filed an Explanation of Benefits confirming that the payment for ACBs for the disputed period of February 1 to 28, 2022 had been paid at the maximum hourly rate of $14.90 per hour in accordance with the Guideline. The Explanation of Benefits had also confirmed that payment in the amount of $750.00 total for the disputed invoice had been provided. While there was also an issue whether New Age had actually received the payment, no substantial evidence was submitted on the issue by either party and it was not addressed. Adjudicator Rosenthall agreed with the respondent that the FSCO Guideline No. 01/18 (“Guideline”) establishes the maximum hourly rates used to calculate the maximum monthly ACBs, in accordance with s. 19(2)(a) of the Schedule. Furthermore, the applicant made no submissions to justify paying over the Guideline rate, other than referring to the respondent as “arguing for an hourly rate below minimum wage”. As such, Adjudicator Rosenthall agreed that the respondent’s decision to pay AC rates pursuant to the Guideline was in keeping with Malitskiy v. Unica Insurance Inc., and concluded that the calculation of $750.00 by the respondent was correct. The remaining issues were dismissed.

The issue in this case is whether the law outlined in the Divisional Court decision of Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (CanLII) continues to apply to later dates of loss — particularly, after Bulletin No. A-03/18 was enacted. In this LAT decision, Adjudicator Norris held that Malitskiy continues to apply. In this case, the insurer agreed with the quantum of the applicant’s Form 1 but did not pay an Attendant Care benefit because there was no evidence of an incurred expense. Malitskiy involved an accident that pre-dated the Bulletin’s amendments and involved a principle for allocating funds to incurred expenses relating to ACBs where the invoices fail to include adequate detail of the services provided. The adjudicator held that the principles outlined in Malitskiy continue to apply notwithstanding the Bulletin which, on a certain reading, could have been interpreted to mean that Malitskiy no longer applies. The adjudicator found that Malitskiy is meant to provide guidance to adjusting claims with inadequate information in the invoices. Advising the claimant that the insurer will rely on Malitskiy is considered good communication on behalf of the insurer.

The applicant was involved in a July 29, 2021 accident and sought $3,000 per month in ACBs from September 9, 2021 onwards. The insurer did not dispute the initial entitlement to the maximum, non-catastrophic quantum of care. The adjudicator awarded her $942.19 per month in ACBs commencing December 9, 2022. She was not entitled to a special award. The applicant sought payment of invoices for AC services for the period August 16 to November 30, 2021. The invoices listed the hours of attendant care provided and the rates, which varied between $33.50 to $37.00 per hour. The invoices did not break down the level of care based on the Form 1. The insurer had attempted to apply the ratio method as set out in S.M. v. Unica Insurance, 2020 CanLII 61460 (ON LAT) and partially paid the care being claimed. The insurer had initially paid invoices dated August 31 and September 15, 2021, in full. The applicant argued that the insurer was estopped from changing its calculation method as it had reason to think the further invoices would be paid in full. Due to the insurer changing its payment to the ratio method, the insured had incurred a significant outstanding balance of attendant care. The insurer argued that it could not be estopped as it had not unequivocally waived a known right. In fact, in a letter dated October 29, 2021, it advised the applicant that it would be using the ratio method for paying further invoices. The adjudicator found that the facts did not warrant a finding that the insurer had estopped itself. No further amount of attendant care was awarded.

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.

This reconsideration decision stems from the Applicant requesting reconsideration of the Tribunal’s April 26, 2023 decision. Among other things, the Applicant alleged that the Tribunal erred in law by interpreting s. 42 of the SABS as preventing the submission of a new Form 1 for attendant care because less than 52 weeks had passed since the previous Form 1s were submitted by each party, without first giving the parties an opportunity to make submissions on that issue. The Applicant argued that the Tribunal misinterpreted s. 42 of the Schedule, citing S.M. v. Unica Insurance, 2020 CanLII 12718, for the proposition that a new Form 1 may be submitted at any time if there is a change that results in an increased benefit. The Applicant submitted that it is inconsistent with the purpose of the SABS and ACBs to prevent someone with a deteriorating medical condition from submitting a new assessment within 52 weeks of the last one. However, at paragraphs 33–34 of the decision, the Tribunal expressly rejected this argument. It noted that S.M. v. Unica had been overturned and clarified by Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, where the Divisional Court confirmed that s. 42(12) of the SABS prohibits the submission of a new Form 1 within 52 weeks unless the change is significant enough to warrant consideration of the new Form 1. At paragraph 34, the Tribunal further clarified that the second Form 1 was not excluded from evidence and was, in fact, a live issue during the hearing. The parties had a full opportunity to address its admissibility and the applicability of s. 42(12) during testimony and submissions. The Tribunal specifically referenced questioning of the insurer’s witness regarding s. 42(12), and found that the Applicant’s counsel was well aware of and engaged with the issue. Ultimately, the Tribunal found no error in law, no procedural unfairness, and that its interpretation of the SABS aligned with binding precedent. The reconsideration request was dismissed.