Applicant Denied Attendant Care Benefit As No Proof of Los is Shown

April 11, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M.P. v Certas: Attendant Care Benefit; wife trained attendant; cannot show economic loss due to care given husband; fails to meet intent of legislation;

Date of Decision: January 27, 2017
Hear Before: Adjudicator: Chris Sewrattan

M.P., was injured in a car accident on July 8, 2013. He applied for an attendant care benefit under the SABs, claiming compensation for having his wife provide attendant care service for him for two years. Certas denied the claim. M.P.  appeals to the LAT on this issue.

Issues:

1. Is M.P. entitled to attendant care benefits in the amount of 769.15 per month for the period July 8, 2013 to July 7, 2015?
2. Is M.P. entitled to interest for the overdue payment of benefits?
3. Is Certas liable for costs under Rule 19 of the License Appeal Tribunal Rules of Practice and Procedure (the “Rules”)?

Result:

1. M.P.’s appeal is denied on all three issues.

M.P. is 70 years old. On July 8, 2013 the car he was driving was T-boned on the passenger’s side. As a result of this accident, M.P. has severe knee issues which restrict his mobility. According to physiatrist M.P. has difficulties with any tasks requiring kneeling or squatting, as well as repetitive climbing of stairs or a ladder, or any prolonged walking. In addition, an independent psychiatric evaluation commissioned by Certas diagnosed M.P. with major depression, mixed chronic pain, sleep apnea, and severe stress. An Occupational Therapist assessed M.P. and recommended on December 9, 2014 that he receive 915 minutes of assisted care per week for a total monthly amount of $769.15.

The Schedule allows for an attendant care benefit if one of two prerequisites are met. The person who provides the attendant care must either

1. do so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident
2. sustain an economic loss as a result of providing the goods or services to M.P.

M.P.’s wife was a Personal Attendant (Health Care Aid) at Seniors For Seniors. She is professionally qualified to provide attendant care service, having received a certification as Personal Attendant Plus 2 from the Mohawk College of Applied Arts and Technology in 2002. According to M.P.’s wife’s affidavit, she provided attendant care service to M.P. after his accident by:

1. Perform tasks related to personal hygiene and grooming
2. Meal preparation
3. Dress/undressing
4. Assistance to and from the bathroom
5. Climbing up and down the stairs
6. Changing M.P.’s bandages after his surgery
7. Ensuring M.P. takes his medication
8. Keeping the house tidy to ensure M.P. does not trip
9. Supervision by calling M.P. from work to ensure that everything is okay

Between July 8, 2013 and December 2014, M.P.’s wife provided care to M.P. for four days per week, five hours each day. During this time period, she spent the other three days of the week working as a live-in personal attendant. This accounted for approximately 72 hours of her time per week. Significantly, she worked this same three-days-a-week schedule prior to M.P.’s motor vehicle accident. Beginning in January 2015, M.P.’s wife’s rate of care for M.P. changed from 5 hours per day for 4 days a week to 5 hours per day for 7 days per week.

The parties disagree about what M.P.’s wife did after December 2014. This factual detail is important. Was M.P.’s wife “ordinarily engaged” as a professional Personal Attendant prior to M.P.’s motor vehicle accident? M.P.’s entitlement to an attendant care benefit turns on whether his wife was ordinarily engaged in her profession as a Personal Attendant prior to the accident. This will be discussed in full in the next section.

M.P. submits that that in January 2015 his wife had to stop providing care to her 90-year-old client because she developed a sciatic problem and could no longer provide total care. M.P.’s wife switched to providing care to M.P. seven days a week, including the time when she otherwise would have been working. Her affidavit states that she could not provide the required care to her client “while also assisting my husband at the same time.”

M.P. asks the Tribunal to infer from this sentence that her sciatic condition would not have developed or worsened to such a degree but for the physical demands of having to care for her husband after the accident.  For two reasons, the Arbitrator was not prepared to make this logical leap. First, if there was a causal relationship between M.P.’s wife’s care for M.P. and her sciatic problem, she should state it explicitly say this in her affidavit. Second, if there is a reliance on the inference on the basis of the words in the affidavit, medical corroborating medical evidence on her condition is required. None has been provided. There is insufficient evidence to conclude that M.P.’s wife developed her sciatic condition because of her care duties to her client and husband, and as a result had to stop providing total care as a live-in to her client.

In a letter from M.P.’s lawyer to Certas dated June 30, 2015, M.P. advised that M.P.’s wife had been off work from January 2015 until the present (June 30, 2015) because no work was available. He made no mention of her sciatic condition, her inability to provide care to both her client and husband, or a causal connection between her provision of care to her husband and her sciatic condition.

Certas’ submits that M.P.’s wife stopped working in December 2014 because there was “no work available” and, therefore, there is no causal connection between the motor vehicle accident and her unemployment.

The inference that the Arbitrator made based on all of the evidence on this issue is that in January 2015 M.P.’s wife was unable to work for health reasons, and this inability was unconnected to the care she provided for M.P.

Is M.P. entitled to an attendant care benefit?

An applicant is entitled to reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant. A prerequisite to entitlement is that the expense is “incurred”.

The Arbitrator reviewed the legislation and noted that there are two classes of attendant care providers:

1. professional providers who are typically, though not necessarily, at arms-length from M.P.; and,
2. M.P.’s family or friends who sustain an economic loss as a result of providing the service

M.P.’s wife stands at the intersection of these two classes. She is a family member of M.P. who is also professionally qualified to provide the requisite attendant care services.

M.P. submits that his wife’s service was incurred because she fits the class of professional providers. M.P. acknowledges that the Schedule was amended by the Ontario Legislature to prevent family members from receiving a windfall when they would have provided attendant care service to the injured party for free and without economic loss. M.P. distinguishes his case by pointing out that she is both a family member and a qualified professional.

Certas essentially submits that M.P.’s wife’s service fits within neither class and that there is no evidence M.P.’s wife sustained an economic loss.

The Arbitrator was not convinced that M.P.’s wife’s service fits within the meaning and intent the definitions. The provision requires that the service is the product of an employment, occupation, or profession in which M.P.’s wife would have ordinarily been engaged even if her husband was not involved in a motor vehicle accident. Furthermore, it is required that M.P. promised to pay his wife or be legally obligated to pay her. The Arbitrator’s decision turns on the need for M.P.’s wife to “ordinarily have been engaged” in providing her service “but for the accident”. The evidentiary record suggests that:  M.P.’s wife would not have been engaged in providing her service even if the accident did not occur; she was not promised compensation by M.P.; and, her service would have been provided even if she was not compensated by M.P.

This is precisely the type of work that the Legislature attempted to disqualify from compensation under when it amended the Schedule in 2010. The fact that M.P.’s wife is professionally accredited does not change this disqualification. She is a professional, but her service was not rendered in her professional capacity. This factual determination is made after considering all of the evidence.

 M.P.’s wife provided her professional service, and worked the same hours before and after the accident, for the most part. There is insufficient indication that M.P.’s wife worked more than three days a week before the accident. There is insufficient indication that M.P.’s wife had to work less after the accident in order to provide professional care to M.P.

While there is little doubt that M.P. needs attendant care. While M.P.’s wife’s service to M.P. is laudable, the Legislature has determined that it is not compensable under s.7(e)(iii)(A).

Conclusion

M.P. is not entitled to an attendant care benefit because he has not proven that he incurred the expense for this benefit in the manner required under the Schedule. Because of this conclusion, M.P. is not entitled to interest.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.