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Insurance - Auto - Attendent Care Benefits
MORE CASES
Part 2
. Morrissey v. Wawanesa Insurance Company
In Morrissey v. Wawanesa Insurance Company (Ont CA, 2024) the Ontario Court of Appeal allowed a LAT SABS appeal, here where a long-term catastrophically-injured auto insurance claimant sought additional 'attendent care benefits'.
Here the court extensively considers the operation of SABS (2010) s.42 [esp.(5)] [SS: 'Application for attendant care benefits' (timing of payment of ACB expenses)]:[3] The appeal involves the interpretation of O. Reg. 403/96, Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 (the “1996 Schedule”) and O. Reg. 34/10, Statutory Accident Benefits Schedule – Accidents on or After September 1, 2010 (the “2010 Schedule”), including their transitional provisions.
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D. Key Provisions of the Schedules
[13] Two provisions of the 2010 Schedule are central to this appeal: s. 42(5) (which is virtually identical to s. 39(3) of the 1996 Schedule) and s. 3(7)(e).
[14] Section 42(5) provides as follows:An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with this section is submitted to the insurer. [15] Section 3(7)(e) sets out the following definition of “incurred”:3(7) For the purposes of this Regulation,
...
(e) … an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,
(i) the insured person has received the goods or services to which the expense relates,
(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
(iii) the person who provided the goods or services,
(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 …[5] [16] While the appeal centres on these provisions, I will also refer to other provisions of the Schedules as the need arises.
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(2) Mr. Morrissey’s claim for retroactive benefits and s. 42(5) of the 2010 Schedule
[40] This issue engages the proper interpretation of s. 42(5) of the 2010 Schedule (which is virtually identical to s. 39(3) of the 1996 Schedule). Again, s. 42(5) provides that “[a]n insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with this section is submitted to the insurer”. Mr. Morrissey contends that the Adjudicator and the Divisional Court erred in concluding that this provision permits an insurer to refuse a retroactive claim for ACBs (that is, ACBs in respect of a period that has already passed), where an applicant has provided no evidence of the urgency of their care needs and/or the impossibility or impracticability of submitting an assessment of attendant care needs (known as a Form 1) before the expense is incurred.[8]
[41] As I will explain, it is not a condition of eligibility for retroactive ACBs, that is for benefits in respect of a period that has already passed when the application is made, that the applicant provide an explanation for any delay in making the application. The provision relied upon by Wawanesa, s. 42(5), does not speak specifically to claims for “retroactive” ACBs, nor does it require that an insured provide a reason for any delay in submitting a retroactive Form 1 and an explanation of the urgency of their care needs and/or the impossibility or impracticability of compliance with any requirement. Construed in its proper context, s. 42(5) speaks to the timing of payment, not eligibility for benefits. The provision simply permits, but does not oblige, an insurer to make an exception to the requirement of a completed Form 1 before beginning to pay ACBs.
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[44] In my view the Adjudicator and the Divisional Court erred in rejecting Mr. Morrissey’s claim for retroactive ACBs on the basis that he had not provided any explanation for the delay in submitting a Form 1. When the relevant provisions of the Schedules are considered, it is clear that successive Form 1s can be submitted by an insured; that s. 42(5) does not have the meaning attributed by Wawanesa, but simply permits an insurer to begin paying ACBs before a Form 1 has been submitted; and that there is accordingly no basis in s. 42 for an insurer to require an insured to establish urgency, impossibility or impracticability as a condition of paying a retroactive claim for ACBs.
[45] The parties agree that s. 16 of the 1996 Schedule establishes Mr. Morrissey’s entitlement to ACBs. The relevant parts of s. 16 provide as follows:16(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit.
(1.1) […]
(2) The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,
(a) services provided by an aide or attendant; or
(b) […]
(3) […]
(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.
(5) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:
1. If the accident occurred before October 1, 2003, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,
i. [...]
ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident. ... [46] Accordingly, pursuant to s. 16, Mr. Morrissey, as a person who was catastrophically injured in a car accident in 2000, is entitled to “all reasonable and necessary” ACBs determined in accordance with his Form 1 up to a limit of $6,000 per month.[9]
[47] Turning to the procedure for the application for and payment of ACBs, the parties agree that s. 42 of the 2010 Schedule applies. An examination of s. 42 reveals that nowhere does the provision speak of “retroactive” claims for ACBs, or in any other way impose time limits on an insured for the initiation of a claim for ACBs.[10] Rather, s. 42 prescribes the manner in which the claim must be submitted. It requires an applicant for ACBs to submit a Form 1 prepared by an occupational therapist or registered nurse, which is compliant with any applicable Guideline.[11] There are, however, deadlines for the insurer to respond. The insurer must, within ten days of receipt of the Form 1, notify the applicant indicating the expenses it agrees and refuses to pay and why, and, at its option require the applicant to submit to a s. 44 examination. Section 42(6) requires the insurer to begin paying the ACBs within ten days of receiving the Form 1.
[48] The remaining subsections provide for the continued payment of ACBs at the same rate until the insurer receives its own Form 1 and/or a report on the s. 44 examination; the requirement of notice to the insured of the amounts the insurer agrees to pay and the reasons for the insurer’s decision; and the consequences where an insured person does not submit to a s. 44 examination as required, or where there is subsequent compliance.
[49] It is in this context that s. 42(5) must be considered. Having regard to what precedes and follows s. 42(5), I conclude that while a Form 1 is required before an insurer must begin to pay ACBs, s. 42(5) permits the insurer, in its discretion, to start paying ACBs before a Form 1 is submitted. As Arbitrator Eban Bayefsky stated in T.N. v. Personal Insurance Company of Canada, 2012 ONFSCDRS 119 (FSCO Arb.), referring to s. 39(3) of the 1996 Schedule which is in substance identical to s. 42(5) of the 2010 Schedule, the section “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”: at p. 19.
[50] The subsections that follow s. 42(5) support this interpretation, and weigh against the interpretation adopted by the Adjudicator and the Divisional Court in this case. The balance of s. 42 anticipates that there can be successive Form 1s, initiated by either the insurer or the insured. Section 42(7) authorizes an insurer to review ACBs by requiring the insured person to prepare and submit a new Form 1 where it wants to determine if an insured person is still entitled to attendant care benefits and/or if the benefits are being paid in the appropriate amount (and permits the insurer to require a s. 44 examination as part of this review process), while s. 42(9) provides that a new Form 1 may be submitted to an insurer at any time there are changes that would affect the amount of the benefits.
[51] Accordingly, while s. 16 of the 1996 Schedule and s. 42 of the 2010 Schedule require an application for ACBs to be initiated through a Form 1, neither section prescribes a time period in which a Form 1 must be submitted, and there is nothing in either section that states that a Form 1 cannot be submitted in respect of a period that has already passed, or that successive Form 1s are prohibited.
[52] In this case the Adjudicator erred by relying on the decision of Adjudicator Shapiro in T.K. to conclude that, while there is no strict bar against filing an application for ACBs on a retroactive basis, an applicant is required to provide a reason for the delay in filing a retroactive Form 1, and that reason should explain the “urgency, impossibility or impracticability” of compliance with s. 42(5). At para. 15 of his reasons, the Adjudicator stated without qualification that he agreed with and adopted the reasoning of Adjudicator Shapiro in T.K. With respect, the Adjudicator’s reliance on T.K. was misplaced.
[53] A close reading of T.K. reveals that Adjudicator Shapiro purported to accept the reasoning in Kelly v. Guarantee Company of North America, 2014 ONFSCDRS 128 (FSCO Arb.). He interpreted Kelly as allowing a retroactive Form 1 in a specific situation – namely, “where urgency and impracticability prevented compliance with s. 42(5)”. Adjudicator Shapiro then distinguished Kelly on the facts, finding that in the case before him “there was no urgency or impossibility or impracticability of compliance with s. 42(5)”. He rejected the claim for retroactive benefits in part because the applicant had provided no reason for the “delay”.
[54] While Adjudicator Shapiro correctly pointed out that the insured in Kelly was neither physically nor legally capable of instituting the Form 1 process, he improperly elevated that circumstance or explanation to a rule of “urgency or impossibility or impracticability of compliance with s. 42(5)”.
[55] In fact, Adjudicator Shapiro’s interpretation of s. 42(5) in T.K. is inconsistent with the reasoning in Kelly, where Arbitrator John Wilson stated that, while a Form 1 may be a precondition to payment of ACBs, requiring a person to complete all the paperwork including a Form 1 before incurring attendant care expenses was not congruent with the SABs scheme: at p. 6. Arbitrator Wilson expressly followed Arbitrator Bayefsky’s interpretation of s. 39(3) – the predecessor to s. 42(5) (discussed below). In his view, the question once a retroactive Form 1 is filed is simply “whether the evidence prior to the receipt of the Form 1 reflects the assessment contained in the Form 1”: at p. 11.
[56] Returning to the present case, while the Adjudicator listed Kelly as among the authorities relied on by Mr. Morrissey, he did not consider the reasoning in Kelly or its treatment in T.K. He, and later the Divisional Court, instead relied on a line of subsequent cases interpreting T.K. as authority for the requirement that an insured show “urgency, impossibility or impracticability” when submitting a retroactive Form 1. The Adjudicator and the Divisional Court did not consider the difficulties with the interpretation of Kelly in T.K. Nor did they address the reasoning in a line of cases decided by FSCO arbitrators that came to a different conclusion.
[57] Most notably, the Adjudicator and the Divisional Court did not address the reasoning in T.N., a prior FSCO decision that Arbitrator Wilson followed in Kelly. In T.N. Arbitrator Bayefsky rejected the insurer’s argument that s. 39(3) (now s. 42(5)) precluded the submission of a retroactive Form 1. He stated at p. 19:[S]ection 39(3) [the predecessor to s. 42(5)] does not displace an insurer’s basic obligation to pay reasonable and necessary attendant care benefits determined in accordance with a duly prepared Form 1. Section 39(3) established an insured’s obligation to claim attendant care benefits in accordance with a Form 1, and an insurer’s right to await a Form 1 before assessing an insured’s entitlement to attendant care benefits. Section 39(3) allows an insurer to pay attendant care benefits without a Form 1. It states that an insurer is not required to pay attendant care benefits before a Form 1 is submitted. 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. [Emphasis added.] [58] Arbitrator Bayefsky found that an insured could be entitled to ACBs for periods prior to the submission of a Form 1, once the Form 1 was actually submitted, and that the insured’s entitlement would have to be determined in a fair manner based on all the available evidence. There was no reference to any requirement of “urgency, impracticability or impossibility”.
[59] Similarly, in M.G. v. Economical Mutual Insurance Company, 2014 ONFSCDRS 119 (FSCO App.), the Director’s Delegate, David Evans, allowing an appeal from an Arbitrator’s decision, accepted that an applicant could make a retroactive claim for ACBs and adopted the interpretation of s. 39(3) of Arbitrator Bayefsky in T.N., that the subsection speaks more to the timing of payment rather than entitlement. The Director’s Delegate also doubted that s. 39(3), which speaks of “a” Form 1 and “an” assessment of attendant care needs, applied in any event to a subsequent claim for ACBs because there already was an assessment of attendant care needs in place when the later Form 1s were served: at p. 16.
[60] In my view, the interpretation of s. 39(3) (now s. 42(5)) in these decisions – unlike in the T.K. line of cases – is consistent with a plain reading of the subsection in the context of s. 42 as a whole and the SABs scheme. Accordingly, the Adjudicator and the Divisional Court erred in concluding that a retroactive Form 1 can be submitted and considered only where there is evidence of urgency of a need and/or impossibility or impracticability of compliance with the requirements of s. 42(5).
[61] It is simply not the case, as the Adjudicator observed, that a contrary interpretation would render s. 42(5), or for that matter, s. 42, meaningless. Again, the surrounding statutory scheme provides critical context. Section 42 contemplates that, in the ordinary course, no ACBs will be paid until a Form 1 is filed and the insurer has had the opportunity to assess whether ACBs should be paid and the appropriate quantum. From this context, it is clear that s. 42(5) has a distinct meaning: it permits an insurer to make an exception to the requirement of a completed Form 1 before beginning to pay ACBs. There is no basis – textual, contextual, or otherwise – for requiring “urgency, impossibility or impracticability” as a precondition to payment of ACBs. Rather, this concept should be regarded as simply reflecting the fact that some insureds have an urgent need for attendant care and it is in fact impossible or impracticable for them to submit a Form 1 prior to incurring attendant care expenses. In such cases, where there is something that is preventing an insured from submitting a Form 1 in a prompt manner, the insurer may – at its option – wish to make a payment of ACBs prior to receiving the Form 1. This interpretation of s. 42(5) is consistent with its plain wording and the remedial purpose of the SABs scheme.
[62] Relatedly, and contrary to the Adjudicator’s statement that Mr. Morrissey had failed to provide a reason for his “non-compliance with s. 42(5)” (presumably by providing a Form 1 that was not contemporaneous with his need for ACBs), there is nothing in that subsection – or elsewhere in s. 42 for that matter – that speaks to the timing of submission of a Form 1. I agree with Arbitrator Bayefsky’s conclusion in T.N. that significantly stronger statutory language would be needed to disentitle an insured to ACBs incurred before the submission of a Form 1. And as Arbitrator Wilson stated in Kelly, to require an injured person in every circumstance to complete a Form 1 before incurring attendant care expenses would not be congruent with the SABs scheme. For these reasons, there was no “non-compliance” by Mr. Morrissey with any requirement imposed in s. 42.
[63] In summary, s. 42(5) was not interpreted correctly by the Adjudicator and by the Divisional Court. Section 42(5) simply confirms that an insurer has discretion to pay (or not to pay) ACBs before a Form 1 is submitted. Once a Form 1 is submitted (which can cover a period that has already passed), the insurer is obliged to determine whether the expenses claimed in relation to that period are reasonable and necessary. Section 42(5) does not make the payment of such claims discretionary; rather, as Arbitrator Wilson observed in Kelly, the question is then “whether the evidence prior to the receipt of the Form 1 reflects the assessment contained in the Form 1”. There is no basis in s. 42(5) for requiring as a precondition to the consideration of such a claim that the insured provide an explanation, based on urgency, impracticability, impossibility or otherwise, for why the claim is in respect of goods or services already provided. . Co-Operators Insurance Company v. Bennett
In Co-Operators Insurance Company v. Bennett (Div Court, 2023) the Divisional Court considers SABS provisions and law regarding attendent care benefits and related assessments:[15] Section 38(3) of the SABS, which the LAT cited in its finding that the respondent was eligible for an attendant care assessment benefit, sets out a scheme for attendant care benefits and assessments for those benefits. By virtue of s. 38(3)(i)(B), assessment plan benefits are available to insured persons with “predominantly minor injuries” but who do not come within the MIG due to their pre-existing injuries. The provision reads as follows:Claims for medical and rehabilitation benefits and for approval of assessments, etc.
38. (3) A treatment and assessment plan must,
(a) be signed by the insured person unless the insurer waives that requirement;
(b) be completed and signed by a regulated health professional; and
(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation and,
(i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,
(A) that the insured person’s impairment is not predominantly a minor injury, or
(B) that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline, or
(ii) stating, if the treatment and assessment plan is in respect of an accident that occurred before September 1, 2010, that the expenses contemplated by the treatment and assessment plan are reasonable and necessary for the insured person’s treatment or rehabilitation. O. Reg. 34/10, s. 38 (3); O. Reg. 347/13, s. 4; O. Reg. 251/15, s. 13 (3); O. Reg. 123/19, s. 7.
(Emphasis added) [16] Before the LAT, and on appeal, the appellant submits that the respondent was not entitled to benefits for an attendant care assessment because although she was removed from the MIG due to her pre-existing condition, she nevertheless only suffered minor injuries in her accident. As counsel put it, “either you have a minor injury, or you do not.” The appellant argues that the respondent was excluded from any attendant care assessment on a plain reading of ss. 14.2 and 25(2) of the SABS, and the MIG is irrelevant to the determination of the question.
[17] Section 14.2 reads:Insurer liable to pay benefits
14. Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
1. Medical and rehabilitation benefits under sections 15 to 17.
2. If the impairment is not a minor injury, attendant care benefits under section 19.
O. Reg. 34/10, s. 14. (Emphasis added) [18] Section 25(2) limits the entitlement found in s. 25(1) to in-home attendant care assessments in the following terms:Cost of examinations
25. (1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:
1. Reasonable fees charged for preparing a disability certificate if required under section 21, 36 or 37, including any assessment or examination necessary for that purpose.
2. Fees charged in accordance with the Minor Injury Guideline by a person authorized by the Guideline for preparing a treatment confirmation form and for conducting an assessment or examination and preparing a report as authorized by the Guideline.
3. Reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been:
i. approved by the insurer,
ii. deemed by this Regulation to be payable by the insurer, or
iii. determined to be payable by the insurer on the resolution of a dispute described in subsection 280 (1) of the Act.
4. Reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose.
5. Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. O. Reg. 34/10, s. 25 (1); O. Reg. 44/16, s. 2.
(2) Despite subsection (1), an insurer is not required to pay for an assessment or examination conducted in the insured person’s home unless the insured person has sustained an impairment that is not a minor injury. O. Reg. 34/10, s. 25 (2). (Emphasis added) . Vaitheeswaran v. State Farm Mutual Automobile Insurance Company
In Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (Div Court, 2022) the Divisional Court considered a LAT appeal regarding SABS attendent care benefits. The case is interesting for it's setting out of attendent care funding procedures:[8] The Appellant was injured in an automobile accident on October 19, 2007, following which she experienced ongoing pain, psychological/emotional issues, and challenges with daily activities. On February 18, 2020, the Appellant was found by Adjudicator Parish to have sustained a Catastrophic Impairment as defined by the SABS following a hearing in which the Appellant sought an attendant care benefit of $1,762.52 per month from October 19, 2009, plus interest from that same date.
[9] The issues raised on the First Appeal relate to the availability and amounts of the attendant care benefits claimed by the Appellant and the date from which interest is to be calculated on those to which she was found to be entitled.
[10] Pursuant to the SABS, claims for attendant care must be accompanied by a Form 1 and provided to the insurer. Form 1 is to be completed so as to stipulate precisely the nature of the care or services for which entitlement to payment is being sought, organized into Levels 1, 2 and 3. The Appellant claimed retroactive payments for bathroom cleaning as well as basic supervisory care required where the claimant “lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour”. The Appellant included these claims in Level 2 of the Form submitted by her in February 2017.
[11] At the lengthy hearing before the Tribunal to determine her claim for a Catastrophic Impairment designation and retroactive attendant care benefits, the Appellant tendered expert evidence from an occupational therapist who expressed the opinion that the Appellant required, among other things, attendant care with her personal hygiene. This care included bathroom cleaning, recommended by the occupational therapist because the Appellant’s impairment negatively affected her ability to complete these “hygiene” activities. With respect to basic supervisory care, the occupational therapist also recommended elevated attendant care to provide the Appellant with emotional support to assist her in coping with her post-collision functional changes and symptoms.
[12] The Adjudicator determined that the Appellant had sustained a Class 4 Marked Impairment in the domain of “Activities of Daily Living” and was therefore entitled to an attendant care benefit in the amount of $507.03 per month for feeding assistance.
[13] No attendant care was ordered to be payable for bathroom cleaning, as the Adjudicator found that the services requested for her did not relate directly to the Appellant’s personal hygiene care and were more properly in the nature of benefits for housekeeping and home maintenance, a separate category.
[14] Similarly, no attendant care was ruled payable for basic supervisory care which was, on the evidence, principally for emotional support. Relying on the wording of Form 1 that requires that the applicant “must lack the ability to respond to an emergency or needs custodial care due to changes in behaviour” in order to qualify for such payment assistance, the Adjudicator noted the Appellant’s own evidence that she had not experienced any emergency that she had been unable to respond to since the accident. She knew what to do, and could do it, in case of an emergency and did not need custodial care for that purpose. Generally speaking, a custodial care benefit does not include the cost of provision of emotional support (see: TN v. TD Insurance Company, 2020 ONLAT 19-005638/AABS).
[15] The Adjudicator further determined that interest was to accrue on the retroactive attendant care benefits found to be payable, but only from the date in February 2017 when the Respondent received the Appellant’s Form 1 claiming them.
[16] The Appellant submitted a request for reconsideration of the Decision. On June 15, 2020, the Adjudicator, in her Reconsideration Decision, determined that she had erred in calculating the amount of the attendant care benefit payable to the Appellant regarding assistance required for feeding and, as a result, corrected the amount to $845.06 per month.
[17] The Adjudicator dismissed the balance of the reconsideration request with respect to the issues of bathroom cleaning, basic supervisory care, and interest. In so doing, she noted that the Appellant had raised some new arguments on some of these issues for the first time on reconsideration which she was of the opinion ought to have been advanced at the initial hearing.
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