Insurance - Auto - Attendent Care Benefits. 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:
 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:. Vaitheeswaran v. State Farm Mutual Automobile Insurance Company
Claims for medical and rehabilitation benefits and for approval of assessments, etc. 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.
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.
 Section 14.2 reads:
Insurer liable to pay benefits Section 25(2) limits the entitlement found in s. 25(1) to in-home attendant care assessments in the following terms:
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)
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)
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:
 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.
 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.
 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.
 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.
 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.
 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.
 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).
 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.
 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.
 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.