Denying Attendant Care as Not Incurred Fraught With Difficulty if Provider Trained as PSW Even if Not So Employed: A Study of Two LAT Decisions

By Suzanne Clarke Jan 10, 2018

In A.P. and Coseco Insurance Company, 16-004363/AABS, dated October 31, 2017, the Applicant who sustained a catastrophic impairment, sought attendant care benefits, which were denied by Coseco. By way of a Preliminary Hearing, the parties sought a determination as to whether the Applicant’s mother, who qualified as a professional service provider was therefore not required to prove an economic loss.

The Applicant’s mother was a qualified Personal Supper Worker but was not employed in this position either before the accident or at the time of the Applicant’s accident. Coseco argued that since the Applicant’s mother was never employed as a Personal Support Worker before the accident, she did not meet the definition of “professional service provider” as defined in section 3(7)(e)(iii) (A) of the Schedule.

Adjudicator Troung held that upon plain reading of section 3(7)(e) of the Schedule, it was clear that even though professional service providers were usually not family members, there was nothing in the wording of this section which implied that a professional service provider must be at arm’s length from the insured. Therefore, Adjudicator Troung held that family members could also be professional service providers.

Adjudicator Troung also examined the phrase “ordinarily engaged” in section 3(7)(e) and held that “ordinarily engaged” in a profession could including training, licensing, regulatory certification processes and actively seeking employment. Therefore, she found that if a person was taking steps to become employed in a profession, that person was “ordinarily engaged” in that profession.

Distinguishing this case from that of Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014, Adjudicator Troung accepted the evidence proffered by the Applicant’s mother of attempts to find employment as a Personal Support Worker before the accident. Adjudicator Troung found that there was nothing in the Schedule that mandated a professional service provider must have prior professional experience. Therefore, Adjudicator Troung ultimately concluded that since the Applicant’s mother was a trained and certified Personal Support Worker at the time of the accident, who was actively looking for employment and went on to obtain employment in this field, she qualified as a professional service provider. Since the Applicant’s mother qualified a professional service provider, Adjudicator Troung held that the Applicant’s mother was not required to prove an economic loss from the date of the accident onward. 

In J.C.C and Echelon General Insurance Company, 17-000848/AABS, dated December 6, 2017, the Applicant sought to hire a Personal Support Worker who shared his cultural and linguistic background to provide him with attendant care. Echelon agreed that the Applicant was entitled to Attendant Care Benefits up to a maximum of $3,000 but refused the Applicant’s request for such benefits because the person who provided him with attendant care, P.S., was not employed as a Personal Support Worker at the time of the accident. Echelon argued that P.S. was a non-professional service provider, and should only be compensated for economic loss she actually incurred.

The parties agreed that P.S. obtained a Personal Support Worker certificate years before the accident and last worked in this capacity some three years before the accident. The parties also agreed that at the time of the accident, P.S. was working as a lab technician and then found a job as a Personal Support Worker right after she stopped providing care to the Applicant.

Echelon’s position was that since P.S. did not provide attendant care services to the Applicant in the course of her employment, she must demonstrate that she suffered an economic loss as a result of providing attendant care to the Applicant. Since the Applicant did not provide proof of P.S.’s economic loss, Echelon submitted that the Applicant did not meet his burden of proof on this issue.

Relying in part on Adjudicator Troung’s reasoning in A.P. and Coseco Insurance Company, Adjudicator Go accepted the evidence that P.S. worked as a Personal Support Worker before the accident and right after she provided care to the Applicant, as proof that she provided care to the Applicant in her capacity as a Personal Support Worker. Adjudicator Go found that the Schedule did not provide that a care provider must be exclusively employed as a health professional for an insured person to obtain the maximum amount of benefits. Therefore, Adjudicator Go held that although P.S. was not working as a Personal Support Worker immediately before the accident, this did was not disqualify her from providing such services to the Applicant. Ultimately, Adjudicator Go decided that the Applicant was entitled to receive Attendant Care Benefits in the amount of $3,000 while under the care of P.S.

These two cases show that once a person is a qualified Personal Support Worker and either had experience in this field or was attempting to find a job in this area before the accident in question, that person could qualify as a professional service provider as defined by the Schedule. Therefore, Insurers should be cautious in denying attendant care on the basis of it not being incurred,  especially where provided by family members, without first carefully reviewing the care provider’s credentials, work history or job searches.

Suzanne Clarke is a member of the License Appeal Tribunal practice group and the author of this blog. If you have a question about these decisions or a similar file, please contact Suzanne.