March 15, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Michael Kelly, Q.C.
Date of Decision: January 13, 2014
DECISION ON A PRELIMINARY ISSUE HEARING
Mr. Reuben Marcus was injured while a passenger in a Toronto Transit Commission bus on November 26, 2010 at the age of 89. He received statutory accident benefits (SABS) from TTC Insurance. Mr. Marcus claims catastrophic impairment under the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Marcus applied for arbitration at the FSCO. That hearing is March 10, 2014.
Mr. Marcus died on May 30, 2013. His Estate is proceeding with the Arbitration. The parties requested an in-writing preliminary issue hearing, to determine the amount of past attendant care benefits payable to the Estate of Reuben Marcus, should the Arbitrator, at the Arbitration Hearing, determine that Mr. Marcus suffered catastrophic injury.
Therefore, the issue in this Preliminary hearing is:
Where the attendant care services are provided by a professional aide, should the quantum of the Attendant Care Benefit be assessed on the basis of the amount set out in Form 1 (Assessment of Attendant Care Needs), or on the basis of the amount actually paid to the professional?
The quantum should be based on the figure set out in the Form 1, subject to any successful challenge to the Form 1 pursuant to Sections 42, 44, or 33 of the SABS. The Estate of Reuben Marcus shall therefore be entitled to receive past Attendant Care Benefits of $6000.00 per month, less amounts paid, from the date of commencement of entitlement pursuant to the SABS to the date of Mr. Marcus’ death, in the event that the Arbitration determines that Mr. Marcus suffered catastrophic impairment as a result of the accident.
EVIDENCE AND ANALYSIS:
Mr. Marcus suffered significant disability following the accident. After his release from hospital, he was assessed for attendant care needs. A registered nurse completed an Independent In-Home Assessment of Attendant Care Needs on March 15, 2011 (Form 1) and an Assessment of Attendant Care Needs (Form 1) on March 20, 2011. It was her opinion that Mr. Marcus required 24-hour per day attendant care, at a cost of $6566.25 per month.
Mr. Marcus hired a registered nurse April 1, 2011 providing 40 hours of weekly live-in home attendant care services at a cost of $1820.00 per month, plus overtime at a higher rate, excluding overtime, and severance pay. TTC Insurance paid Mr. Marcus $3000.00 per month for attendant care benefits - the maximum for a person who had not sustained a catastrophic injury based on their payment on the Form 1 figure.
Up to the date of Mr. Marcus' death the Registered Nurse received from Mr. Marcus $76,679.00, exclusive of severance pay. Mr. Marcus received $35,000.00 up to February 13, 2013, from TTC Insurance for attendant care benefits. While both parties agree Mr. Marcus was entitled to attendant care benefits the dispute was the quantum of benefits. Specifically whether the Estate was entitled to the amount in Form 1, or whether it is $6000 per month if the arbitration determines that catastrophic impairment has been proven.
TTC Insurance took the position that the only reasonable interpretation of the Schedule, when s. 19(1)(a) and s. 3(7)(e) are read together, is that the quantum is to be calculated on the basis of actual cost of the services provided by a professional according to the identified needs in Form 1. To proceed otherwise would result in the intent of the changes to the SABS, as of September 1, 2010, being ignored.
Arbitrator Kelly reviewed The Report on the Five-Year Review of Automobile Insurance and its section dealing with Accident Care Benefits. The report concluded that overutilization of attendant care benefits has become a problem. Decisions have been made based upon the principle that benefits should not be denied to a person who was deserving of the benefit, but simply did not have the financial capacity to pay for it. Further, the report recommended that, if an Arbitrator found that an insurer was unreasonable in denying ACB, the benefit should be paid, even if no expenses have been incurred. It appears that its primary focus addressed the issue of entitlement. The integrity of the Form 1 is important to both the issue of entitlement and to the issue of quantum.
Arbitrator Kelly then reviewed The Changes under the Statutory Accident Benefits Schedule and previous court decisions determining that the purpose of Subsection 3(7) of the 2010 Schedule was to address the issue of entitlement, not quantum. The jurisprudence defines "incurred" as the equivalent of "need for care", as detailed in the Form 1. It would appear s. 3(7) exists to establish a gateway through which a claim must be able to pass before entitlement to a benefit had to be addressed.
The Court has simply said once a claim penetrates the threshold the Form 1 determines quantum. On that basis Arbitrator Kelly ruled that Mr. Marcus would be entitled to $6000 per month if arbitration finds he was catastrophically injured.
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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.