Applicant's injuries and compensation determined by the Schedule in effect at the time of the accident - Echelon General Insurance Compay, 2018 CanLII 13151 ON LAT 16-003153

June 01, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Echelon General Insurance Compay, 2018 CanLII 13151 ON LAT 16-003153

Date of Decision: February 23, 2018
Heard Before: Adjudicator Deborah Neilson

INCURRED EXPENSE: what is an incurred expense; which SABs Schedule applies?

The applicant suffered catastrophic injuries in a motorcycle accident on March 17, 2010 and sought benefits from Echelon pursuant to the SABs. The applicant disagreed with Echelon’s decision to deny certain benefits, including attendant care and housekeeping benefits, and submitted an application to the LAT. 

The parties disagree on which SABs regulation governs the applicant’s claims for determining entitlement to and the amount payable for housekeeping and attendant care benefits. The attendant care services claimed by the applicant have been provided by her spouse, whose employment and profession prior to the accident had nothing to do with providing attendant care or housekeeping. Echelon submits that the applicant is required to show that her spouse sustained an economic loss in providing his services in accordance with The Schedule — Effective September 1, 2010. Echelon also submits that the amount of attendant care payable is determined by the amount of economic loss sustained by the applicant’s spouse as required under the SABS-2010.

The applicant submits that because the accident took place before the SABS-2010 came into force, the determination of entitlement to and the amount payable for attendant care and housekeeping benefits must be made under the 1996 Schedule, not the SABS-2010.

Issues:

1. Does the definition of “incurred expense” in the SABS-2010 apply to the applicant’s claim for housekeeping and attendant care benefits?
2. If so, do the revisions to the SABS-2010 requiring a family member providing services to the applicant to establish an economic loss apply the applicant’s claims for housekeeping and attendant care benefits?
3. If so, do the revisions to the SABS-2010 limiting the amount of attendant care and housekeeping benefits for services provided by family members to their economic loss apply to the applicant’s claims for benefits incurred before February 1, 2014? 

Results:

1. The applicant’s entitlement to and the amount payable to the applicant for attendant care and housekeeping benefits is determined under the 1996 Schedule. Neither the definition of “incurred expense” in s.3(7)(e) of the SABS-2010 nor the determination of quantum in ss.19(3)4 and 5 of the SABS-2010 apply to the applicant’s claims.

There are presently four different statutory accident benefits Schedules in force. Those Schedules apply to accidents that have occurred during specified dates.  All four of the Schedules have undergone various amendments over the years, but none of the Schedules have been revoked. The entitlement to benefits and the procedures for claiming and paying accident benefits for accidents that occurred between June 21, 1990 and December 31, 1993 are still governed by the OMPP SABS and for accidents that occurred between January 1, 1994 and October 31, 1996, by Bill 164. Although the 1996 Schedule is still in force, the procedure for claiming and paying benefits for accidents that occurred between November 1, 1996 and August 31, 2010 is from the SABS-2010. Benefits for accidents that occurred between November 1, 1996 and August 31, 2010 are paid under the SABS-2010. However, entitlement to the benefit and the amount of the benefit payable is still determined according to the 1996 Schedule.

Because the applicant’s accident happened before September 1, 2010, the SABS-2010 does not apply for determining the applicant’s entitlement to benefits. Both the 1996 Schedule and the SABS-2010 require an insurer to pay for the reasonable and necessary housekeeping and home maintenance expenses and expenses of an aide or a long term care facility that are “incurred.” One of the differences between the 1996 Schedule and the SABS-2010 is that the SABS-2010 provides a definition for “incurred expense” that is absent from the 1996 Schedule. Under 3(7)(e) of the SABS-2010, an expense is “incurred” if the insured person paid the expense, promised to pay the expense or is otherwise legally obligated to pay the expense. In addition, the person who provided the service must have done 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 must have sustained an economic loss as a result of providing the goods or services.

On February 1, 2014, an amendment was made to the SABS-2010 that essentially limits the amount payable for attendant care to the economic loss sustained by the care provider, unless the provider’s occupation or profession is providing attendant care.

Echelon submits that the definition of incurred expense in the SABS-2010 applies to the applicant’s claims for attendant care and housekeeping benefits. Echelon also submits that the applicant’s claim for attendant care is limited to the amount of economic loss her husband has sustained in providing the attendant care in accordance with the February 1, 2014 amendment to the SABS-2010. Echelon cited the Director’s Delegate in Barnes stated that s.268(1) of the Act first displaces the concept of a motor vehicle liability policy as a private agreement between an insurer and its insured. Second, it makes the Schedule a part of every policy. Third, it makes all amendments to the Schedule a part of every policy, including all terms, conditions, provisions, exclusions and limits. He further indicated that when viewed in that context, without the terms in each regulation that state the applicability of accidents between specific dates, s.268(1) of the Act creates the assumption that amendments apply to all existing policies and, by extension, to all existing claims. Echelon submits that this means that the reference to the “Schedule” in s.268 of the Insurance Act means that the current SABS-2010 and the amendments made to it apply to all claims regardless of when the accident occurred.

The Adjudicator not agree with Echelon that the Director’s Delegate in Barnes meant for s.268(1) of the Act to apply in this manner. Echelon’s interpretation of Barnes ignores the fact that that there are four Schedules presently in force at this time. Echelon’s interpretation also ignores the definition of “Statutory Accident Benefits Schedule”  in s.224(1) of the Insurance Act, which means the regulations made under paragraphs 9 and 10 of s.121(1) of the Insurance Act. The use of the plural term “regulations” in s.224(1), plus the fact that neither the OMPP SABS, Bill 164 or the Schedule-1996 have been revoked or repealed means that the term “Schedule” in s.268(1) of the Insurance Act applies to all the Schedules.

It is clear from a review of those sections that neither the SABS-2010 or the 1996 Schedule state that entitlement to and the amount of attendant care benefits payable set out in s.19 the SABS-2010 apply to accidents that occurred before September 1, 2010. Nor do they state that the definitions in s.3 of the SABS-2010 apply to accidents that occurred before September 1, 2010. The 1996 Schedule has no definition of incurred. If the Legislature intended for the definition of incurred in s.3 and for s.19(3)4 and 5 of the SABS-2010 to apply to accidents that occurred before September 1, 2010, the 1996 Schedule regulations would have been amended to state that. Since the Legislature did not make those amendments to the 1996 Schedule, the definition of incurred expense in the SABS-2010 and the amendments to the SABS-2010 do not apply to the applicant’s claims.

Echelon also relies on the Court of Appeal case of Beattie v. National Frontier Insurance Co. In that case, one of the issues was whether the 1996 Schedule applied to Mr. Beattie’s November 1996 accident or whether Bill 164 applied because it was in force when Mr. Beattie entered into his contract for insurance. Echelon submits that the Court of Appeal in Beattie held that even a new version of the Schedule applies to the insured person, by virtue of section 268(1) of the Insurance Act. I find that Beattie does not assist Echelon because the Court of Appeal held that the Schedule that was in force at the time of the accident applies. When this principle is applied to the applicant’s case, the 1996 Schedule applies for determining the applicant’s entitlement to benefits and the amount of the benefits payable.

Because there is no requirement in either the 1996 Schedule or the SABS-2010 that the amount of attendant care benefits payable in s.19(3)4 or s.19(3)5 of the SABS-2010 apply to the applicant’s March 2010 accident, the amendments adding those sections effective February 1, 2014 do not apply to the applicant’s claims for attendant care benefits for services provided either before February 1, 2014 or after.

On this basis the Adjudicator found the applicant’s entitlement to and the amount payable to the applicant for attendant care and housekeeping benefits is determined under the 1996 Schedule. Neither the definition of “incurred expense” in s.3(7)(e) of the SABS-2010 nor the determination of quantum in ss.19(3)4 and 5 of the SABS-2010  apply to the applicant’s claims. The amendment to the SABS-2010 made by s.9 of O. Reg. 251/15 and s.2 of O. Reg. 347/13 that limit the amount of attendant care payable to the economic loss sustained by the attendant care provider does not apply to the applicant as her accident occurred prior to September 1, 2010.

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.