In the case of 18-003314 v Wawanesa Mutual Insurance Company, the LAT considered whether the applicant, DM, was entitled to $6,000.00 a month in attendant care benefits.
Background
The applicant sustained several injuries when the motorcycle he was riding was struck by a vehicle on September 14, 2011. He suffered from several fractures, injuries to his liver, and had one kidney removed. He remained in the hospital for approximately two months and underwent multiple corrective surgeries.
Following the accident, the applicant moved into his mother’s home where he became socially isolated and developed an addiction to Percocet. He attempted to resume working in September of 2012 but was fired in 2013 owing to poor attendance and his addiction.
The applicant moved into an apartment on his own in 2016. On October 26, 2016, the applicant was designated as Catastrophically Impaired (“CAT”) under Criteria 8 of the Statutory Accident Benefits Schedule (“Schedule”) with respect to the sphere of adaptation from a mental and behavioural perspective. The applicant also met the 55% Whole Person Impairment (“WPI”) threshold of Criteria 7, scoring 32% WPI physical impairment combined with a 49% mental behavioural impairment.
Section 19(1)(a) of the Schedule requires an insurer to pay attendant care benefits for “all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home”.
The applicant submitted a Form One, claiming the maximum amount in attendant care benefits of $6,000.00 per month for 24/7 supervision. He submitted that when not supervised, he mixes drugs and alcohol, has suicidal ideations, and was a danger to himself.
Question to be Determined: is the applicant entitled to 24/7 attendant care at a cost of $6,000.00 per month? The LAT determined 24/7 attendant care not required and awarded $3,047.29 per month from May 1, 2018 and ongoing.
Analysis
In coming to their denial of the applicant’s full attendant care claim, the LAT emphasized the following important considerations.
First, the applicant did not require attendant care for the critical five and a half years following the accident, and received minimal help/support from his mother during this time.
Secondly, when the applicant began receiving attendant care in 2017, he only required $1,138.40 per month.
Third, the medical evidence submitted by the applicant was inconsistent regarding whether his mental health risks required extended supervision.
Fourth, the claim for 24/7 attendant care was based on one incident where the applicant was observed to be mixing drugs and alcohol. He was taken to the hospital and released without mention of being a risk to himself.
Fifth, the company and individual PSW providing attendant care were unaware of the suicidal or harm risks.
And finally, surveillance between 2012 and 2018 showed the applicant successfully navigating within the community.
This case highlights the importance of medical record evidence, the consistency of their recommendations, and the functioning of an applicant in the immediate wake of an accident. Attendant care and other assessments done contemporaneously should not be devalued by reason of the application of 20:20 hindsight in a retroactive attendant care claim. This decision should be a guiding tool for Insurers in determining what entails reasonable attendant care and the evidence required to justify such claims.
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