In the Licence Appeal Tribunal decision of Mathurin v Aviva General Insurance, 2023 ONLAT 21-005498/AABS, Vice-Chair Maedel addressed the issue of entitlement to attendant care benefits, which requires the services to have been “incurred” pursuant to the Statutory Accident Benefits Schedule (“SABS“).
The Applicant was involved in an accident on July 13, 2019.
At the Case Conference an Order was issued that indicated attendant care benefits were in dispute for a period commencing on October 17, 2019. However, in her written submissions, the Applicant sought benefits commencing on August 25, 2019.
It was held that the period in dispute could not be extended to a period prior to submission of the Form 1 (and for longer than the period set out, by consent, at the Case Conference). It was held that if the Applicant was entitled to the benefits and demonstrated same were incurred, attendant care benefits were not payable prior to the submission of the Form 1 pursuant to section 42(5) of the SABS. In this case, the requisite Form 1 was dated August 25, 2019, however, was not submitted to the Respondent until October 17, 2019.
Section 19(1) of the SABS stipulates that attendant care benefits shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident. Section 3 (7)(e) of the SABS defines incurred as
a. goods or services received which relate to the expense,
b. the insured person paid the expense, promised to pay the expense or is otherwise legally obligated to pay the expense, and
c. the person providing the service did so in the course of employment, occupation or profession in which he or she would ordinarily engage, but for the accident or the person providing the service sustained an economic loss as a result of providing the goods and services.
The wording of Section 3 of the SABS is operative.
Entitlement to Attendant Care Benefits
The Applicant submitted invoices for attendant for the period between July 14, 2019 and October 31, 2021. The Respondent argued that the attendant care benefits were not “incurred”.
Vice-Chair Maedel concluded the Applicant failed to establish the attendant care services were “incurred”, as the person providing the service was not doing so in the course of employment, occupation or profession in which she would ordinarily engage, but for the accident.
The Applicant submitted she received attendant care services from her mother, who was a personal support worker. The evidence submitted included a certificate setting out the mother’s qualifications as a PSW. The evidence also confirmed that the Applicant’s mother was employed as a personal support worker for Lumacare beginning January 21, 2019, however had been involved in a workplace injury on August 22, 2019 and had not returned to work after October 11, 2019.
Specifically, the Applicant submitted that she received attendant care benefits from her mother, who was a person who provided assistance “in the ordinary course of her employment, occupation or profession in which she would ordinarily have been engaged, but for the accident”. Vice Chair Maedel noted that the Applicant’s mother filed a WSIB claim in relation to the injuries she sustained on August 22, 2019 and was last employed as a PSW on October 11, 2019 (prior to submission of the Form 1).
The Applicant submitted that her mother was able to provide modified or light services as a personal support worker following her workplace injury, however, Vice-Chair Maedel found the Applicant failed to tender evidence to this effect. Specifically, he found that the Applicant’s mother was injured and never returned to work, and submitted a letter of resignation to her employer on February 15, 2020. He wrote, “Thus, I cannot conclude that her mother was ordinarily engaged as a PSW pursuant to s 3(7)(e)(iii)A in the period following October 17, 2019 when Ms. Kedar’s Form-1 was submitted”.
Furthermore, Vice-Chair Maedel addressed whether the goods and services were provided by a non-professional service provider, and determined, again, that the Applicant failed to tender evidence of a potential economic loss. Vice-Chair Maedel concluded even if the Applicant was entitled to the benefits, she failed to establish attendant care benefits had been incurred.
Takeaway
The onus is on the Applicant to establish attendant care benefits are incurred in accordance with the SABS. Without evidence of incurred expense(s) provided by a professional in course of employment, occupation or profession they would ordinarily be engaged, or by a non-professional service provider, attendant care benefits, even if entitlement is established, are not payable.
This case shows the probative value and importance in obtaining evidence of not only credentials, but the employment records and particulars of the service provider. In this case, the employment file of the Applicant’s service provider mother proved invaluable.
If you have a question about a similar file, please contact the author, Tiziana Serpa ([email protected]).
