Applicant Entitled To Hire Attendant From Similar Culture

January 26, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

JCC  v Echelon LAT 17-000848, 2017 CanLII 85731 (ON LAT)

Decision Date: December 6, 2017
Heard Before:  Adjudicator Avvy Go

ATTENDANT CARE BENEFITS: applicant seeks approval for ACB; insurer denies benefit on the basis that the attendant is not a PSW; applicant argues the attendant is a qualified PSW who has since worked as other career; tribunal rules in favour of applicant

DECISION

JCC was injured in a motorcycle accident on October 3, 2016 and sought benefits pursuant to SABs.  JCC, who is Hispanic, sought to hire a Personal Support Worker (PSW) who shares his cultural and linguistic background to provide him with attendant care services.  His request was refused by Echelon. JCC submitted an application for dispute resolution services to the LAT.

Issues:

1. Is JCC entitled to attendant care benefits in the amount of $3,000.00 for the period October 3, 2016 to March 3, 2017?
2. Is JCC entitled to interest on any overdue payment of benefits?
3. Is Echelon entitled to costs in this matter?

Results:

1. JCC is entitled to the attendant care benefits in the amount of $3,000.00 for the period October 3, 2016 to March 3, 2017 and the interest on these benefits. I find no costs should be awarded in this matter.

On October 3, 2016, JCC was operating a motorcycle when another vehicle attempted to make a U-turn in front of him and came to a stop in the middle of the road. JCC struck that vehicle and fell off his motorcycle.  Following the accident, JCC was transported to hospital by ambulance where he underwent surgery to repair his fractured left femur. JCC remained in hospital for several days.

On October 7, 2016, after having been discharged from the hospital, JCC underwent an Occupational Therapy Attendant Care Assessment pursuant to an OCF-18 approved by Echelon. The assessment concluded that JCC’s monthly level of attendant care needs amounted to a total of $8,977.68.  By a letter dated November 22, 2016, Echelon advised JCC that it would consider expenses for attendant care services to a maximum of $3,000.00 for non-catastrophic injuries.

JCC hired Ms. Paula Moya Salazar to provide him with attendant services, with a view to help him overcome cultural and linguistic barriers in accessing care. JCC and Ms. S met each other through work. Echelon subsequently refused to pay Ms. S for the attendant care services she has provided from October 3, 2016 to March 3, 2017, on the basis that Ms. S was not employed as a Personal Support Worker (PSW) at the time she provided care to JCC.

THE LAW AND ANALYSIS

Pursuant to section 19 of the Schedule, an insurer is required to pay for all reasonable and necessary expenses that are incurred by an insured person as a result of the accident for services provided by a personal support worker. The amount of a monthly attendant care benefit is determined in accordance with the Assessment of Attendant Care Needs (Form 1). JCC has the burden to establish entitlement to attendant care benefits. In the present case the amount of the attendant care benefit shall not exceed $3,000.00 per month, as per s.19 (3) of the Schedule.. Another relevant section is s.3(7)(e)(iii) of the Schedule which differentiates between care providers who provide care in their professional capacity, and family and friends who are not employed as a professional health provider, and the resulting differences in the insured person’s entitlement to benefits.

Issue 1: Is JCC entitled to attendant care benefits in the amount of $3,000.00 for the period October 3, 2016 to March 3, 2016?

The Parties’ Positions

The main contention between the parties regarding the entitlement of attendant care benefits is the classification of the service provider, Ms. S.  JCC submitted that Ms. S is a PSW and was providing care to JCC in that capacity. Echelon argued that Ms. S was a non-professional service provider and as such, should only be compensated for economic loss actually incurred. The parties, however, do agree on a number of facts about Ms. S’s credentials and work history, as outlined in their Agreed Statement of Facts:

• Ms. S had already completed her studies and successfully received her Personal Support Worker certificate in February 2012, when she was retained by JCC;
• Ms. S worked at Walt Disney World Resorts as a housekeeping supervisor; employed at Summer Bay Resorts as a housekeeper and Private Care CAN for the Perez family, while she resided in the USA;
• At the time she was hired by JCC, Ms. S was not working as a PSW;
• Ms. S’s last position as a PSW was in 2013;
• Ms. S returned to school and graduated as a Lab Technician and worked in a walk-in clinic for a time period of one and a half years;
• At the time of her hire, Ms. S was working part-time setting up events;
• Prior to her being hired, JCC and Ms. S worked together at one of JCC’s part-time employers and this is how they met;
• Ms. S submitted invoicing to Echelon for attendant care services she provided to JCC for the months of October 2016, November 2016, December 2016, January 2017 and February 2017; and
• Ms. S has been working as a PSW since April 2017 at Spectrum Health Care.

Echelon cited section 3(7)(e)(iii) of the Schedule which provides that an expense (in this case for attendant care) is not incurred unless the person who provided the goods or services:

a.   did so in the course of the employment, occupation or profession in which they 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.

Echelon argued that for the ACB to be payable, Ms. S must have provided JCC with attendant care services: a) in the course of the employment, occupation or profession that she was engaged in prior to the accident; or b) she must have sustained an economic loss as a result of providing the attendant care services.

The Court of Appeal for Ontario has held that if an economic loss on behalf of the attendant care service provider could be made out, the attendant care benefits would be payable in accordance with the Form 1.  Echelon pointed out that, the Ontario Government had amended the pre-2010 Statutory Accident Benefits Schedule such that if a person who provided attendant care services did not do so in the course of their employment, occupation or profession, the amount of the attendant care benefit payable shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.

As such, Echelon submitted, if Ms. S’s services fell under a definition of a professional service provider, then JCC would be entitled to the maximum potential amount owing. If however, her services fall under the definition of a non-professional service provider, then JCC would only recover the amount of economic loss actually incurred. Echelon submitted that Ms. S was not providing services in the course of her employment and therefore must show she suffered an economic loss. JCC has not submitted any evidence that Ms. S suffered an economic loss as a result of providing attendant care services to JCC, and accordingly JCC has not met his burden of proof on this issue.

JCC relied on section 19(1)(a) of the Schedule which provides in part that attendant care benefits shall pay for all reasonable and necessary expenses that are incurred for services “provided by an aide or attendant”.   JCC cited Lerner’s Dictionary which defines an “aide” as a person whose job is to assist someone, and an “attendant” as an assistant or servant. JCC argued that Ms. S is a PSW who meets the criteria as set out by s.19(1)(a) of the Schedule.  JCC further argued that nowhere is it stated in the Schedule that the aide or attendant cannot be working, before, during, or after providing services, in any other occupation other than that of an aide or attendant. Nor does the Schedule state the aide or attendant must stop working in any other occupation while providing the services of a PSW.

JCC made the further argument that while amendments have been made, the Schedule was not meant to “discriminate or prejudice against persons providing aide or to an attendant”.  JCC cited a hypothetical example of a recently graduated PSW who, according to Echelon’s argument, would not be compensated because the graduate was previously a student and not employed at the time of hire as a PSW.  Such an interpretation, submitted JCC, would not be in keeping with the public policy behind the insurance benefits scheme.

Analysis

Whether JCC is entitled to the benefits he claims and if so, how much, depends on how the provision under s.3(7)(e)(iii) should be interpreted and applied to his case.

In a recent decision of this Tribunal, Adjudicator Truong gave a detailed analysis of s.3(7)(e)(iii) in general and subsection (A) in particular.  Applying the principles of statutory interpretation, Adjudicator Truong concluded that a professional service provider as defined by the Schedule may be eligible for attendant care payment even if they are not in an arm’s length relationship with the insured. Further, a professional service provider needs not have to be someone who has been employed in that profession prior to the accident or is employed in that profession at the time of the accident, so long as he or she is “ordinarily engaged in” the profession through other means such as training, professional certification and job search. While this decision is not binding, it provides a clear analysis of the section in question which is helpful in the analysis of the facts.

In Shawnoo v. Certas Direct, Justice M. A. Garson confirmed that coverage provisions are to be interpreted broadly, in favour of the insured, and that the statutory provisions “must be interpreted in their entire context, having regard to the grammatical and ordinary sense of the provisions, harmoniously alongside the scheme and object of the Act, and the intention of the drafters.” Justice Garson also noted that the court must be “mindful of the need to give such fair and liberal interpretation to this wording so as to best ensure the attainment of the objects” of the Schedule.  He then noted the Court of Appeal in Monks rejected a narrow interpretation of the phrase “incurred” in the context of that case, finding that a broader interpretation is consistent with the policy objective that accident victims properly receive benefits to which they are entitled.

The Arbitrator determined that these facts are sufficient to find Ms. S as someone who provided the care “in the course of the employment occupation or profession” that she would “ordinarily have been engaged, but for the accident”.

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