March 07, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Alec Fadel
Date of Decision: October 31, 2014
REASONS FOR DECISION
Jeremy Josey, was involved in a car accident on December 11, 2011. He applied for and received statutory accident benefits from Primmum Insurance Co. A dispute arose concerning his entitlement an attendant care benefit, and after failing to resolve their dispute through mediation Mr. Josey applied for arbitration at the Financial Services Commission of Ontario.
The issues in this hearing are:
Is Mr. Josey entitled to attendant care benefits in the total amount of $15,795.00?
Mr. Josey is not entitled to the attendant care benefits claimed.
EVIDENCE AND ANALYSIS:
The parties agree that Mr. Josey required attendant care as a result of injuries sustained in the car accident. However, Mr. Josey received attendant care services from his spouse, Ms. Ladd, and Primmum denied entitlement to an attendant care benefit given that Ms. Ladd did not sustain an economic loss. Mr. Josey claims that since Ms. Ladd was a full time caregiver to their three children before the accident, she was a person who provided care in the course of her “employment, occupation or profession” and he was therefore entitled to the attendant care benefit without needing to prove economic loss. Mr. Josey claims that the attendant care expense was “incurred” as his spouse was a full-time caregiver for their three children before the accident and as a result falls into the class of person described under s. 3(7)(e)(iii)(A). She was not a trained professional in the healthcare industry.
In the amendments to the 2010 Schedule, the Legislature set a new definition for the word “incurred” in relation to attendant care and other benefits. That definition is found at s. 3(7)(e), and states that an expense is not incurred unless,
the insured person has received the goods or services to which the expense relates
the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
the person who provided the goods or services,
did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
sustained an economic loss as a result of providing the goods or services to the insured person
Primmum argued that Ms. Ladd’s pre-accident activities cannot be described as “employment, occupation or profession” and therefore (A) does not apply. It argues that for Mr. Josey to show that the attendant care was incurred, he must prove that Ms. Ladd sustained an economic loss as set out in s. 3(7)(e)(iii) (B).
Mr. Josey noted that prior to the changes to the Schedule on September 1, 2010, a family member was entitled to be paid for attendant care services provided to the insured person. Therefore, the Insurance Act should be construed broadly in accordance with the principle of contra proferentem in order to avoid an unfair result from a narrow interpretation of the new legislation.
The 2010 Schedule signifies a significant shift in how attendant care benefits are payable in comparison to the previous version. Prior to the 2010 Schedule, attendant care benefits were required to be “incurred” but did not require the use of professional caregivers or proof of economic loss. Evolving case law eventually relaxed the “incurred” requirement such that the benefit was payable if the services were found to be reasonable and necessary. The 2010 Schedule does not define the key terms “employment,” “occupation” and “profession”, but includes a definition for “incurred” that would require a non-professional attendant care provider to show they have sustained an economic loss as a result of providing attendant care services to the insured.
The Arbitrator found that a comparison of dictionary definitions by Primmum and Mr. Josey was of limited value, deciding it was most important to determine the context of the section, interpreted with all the amendments that took place in 2010. He found that the 2010 Schedule showed a distinct and deliberate shift in the determination of entitlement to attendant care benefits, excluding family members from being reimbursed for attendant care services they provide to an insured without showing that an economic loss has been sustained.
The Arbitrator found that the wording of s. 3(7)(e)(iii)(A) is clear and the intention was that the attendant care services be provided by a professional in the health care industry. He agreed with Primmum that consistent with this reasoning, the amendments did not contemplate that a stay-at-home parent would be considered someone providing attendant care services in the course of their employment, occupation or profession.