Family Member is PSW - Not Required to Show Economic Loss - AP 16-004363 v Coseco Insurance Company, LAT 16-004363

December 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AP 16-004363 v Coseco Insurance Company, LAT 16-004363 2017 CanLII 76917 (ON LAT)

Decision Date: October 31, 2017
Heard Before: Adjudicator Anna Truong

ECONOMIC LOSS INCURRED: family member does not have to show economic loss incurred; ‘profession’ does not mean an individual must be actively employed; education and training define ‘profession’; legislation should be read broadly and in context; consumer protection is considered.

AP was involved in a car accident on October 30, 2015 and sustained a catastrophic impairment as a result of the accident. He sought attendant care benefits from Coseco who denied the claim, and when mediation failed AP applied for arbitration to the LAT.

At issue in this preliminary hearing is the definition of incurred expenses, and whether AP’s mother, RP, qualifies as a professional service provider and therefore not required to prove an economic loss in order for AP to recover attendant care expenses.

Issues:

1. Does AP’s mother qualify as a professional service provider to provide attendant care services to her son as defined by the Schedule?
2. Is AP’s mother required to prove an economic loss, and if so, as of what date?  

Result:

1. AP’s mother is a professional service provider qualified to provide attendant care services to her son as defined by the Schedule. She is not required to prove an economic loss from the date of accident onward.

Section 19 of the Schedule states the insurer shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. For an expense to be considered incurred:

(iii) the person who provided the goods or services,

1. 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
2. sustained an economic loss as a result of providing the goods or services to the insured person.

Are professional service providers required to prove economic loss? The Adjudicator reviewed the law and determined that on a plain reading of section 3(7)(e)(iii), it is evident the drafters intended to create two different classes of service providers given the splitting of the two clauses by the word “or”. A service provider either falls under clause (A) or (B) of section 3(7)(e)(iii). Service providers that fall under clause (B) must sustain an economic loss in order to satisfy the definition of incurred. Had the drafters intended for economic loss to be a consideration in clause (A), they would have expressly written that requirement into clause (A). Since they did not do so, it would logically follow service providers who fall under clause (A) would therefore be exempt from having to sustain an economic loss in order to satisfy the definition of incurred. Clause (A) was meant to apply to professional service providers and clause (B) to non-professional service providers.

Can a family member be a professional service provider?

The difference between a professional and non-professional service provider is important, because they are paid at different rates. Professional service providers may charge for the services they provide at the full hourly rate outlined in the approved Form.

Non-professional service providers must prove an economic loss in order to be compensated for their services. Since February 2014, the compensation for non-professional service providers is limited to the actual amount of economic loss sustained, i.e. the actual amount of lost wages, or additional expense incurred, and not the actual recommended or reasonable and necessary attendant care expense.

Professional service providers are not usually family. They are usually arm’s length individuals hired to provide care to an injured individual in need of these services. However, it is possible for a family member to be a professional service provider and provide attendant care services when a family member is injured in an accident. Given the personal nature of these services, this is at times preferable. There is no restriction in the wording of clause (A) of the Schedule which states a professional service provider must be at arm’s length with the insured.

Is RP a professional service provider as defined by the Schedule?

RP is a 49-year-old mother of two boys, one of which is AP. In 2012, she commenced a Personal Support Worker (“PSW”) course at college and graduated in December 2012 with a Diploma in the Personal Support Worker Program. In order to obtain her Certificate from the National Associate of Career Colleges as a PSW, RP had to complete a final examination and a four-week placement in the field. RP earned her PSW Certificate in February of 2013.

Based on the testimony and the evidence provided at the hearing, the Adjudicator found RP is a professionally trained and certified PSW. There is no disagreement between the parties on this point. The disagreement is with respect to whether she is a professional service provider as defined by section 3(7)(e)(iii)(A) of the Schedule. AP submits that RP meets the definition, because she is trained and certified to be a PSW and worked as one after the accident. Coseco submits she does not meet the definition, because she was never employed as a PSW prior to the accident. Coseco emphasized the fact that RP was not employed as a PSW at the time of the accident and was never employed as a PSW until approximately 10 months post-accident.

The Adjudicator determined that it would be a very narrow definition, if the only criterion for clause (A) was employment, because that would mean that anyone who was temporarily between jobs, or unable to obtain a position in their profession would be ineligible despite being professionally qualified. Clearly, on a plain reading of the legislation, the inclusion of the words “occupation” and “profession” is an expansion of the criteria to be taken into consideration in such an assessment. The question that must be answered is whether or not RP is a professional service provider by occupation or profession? Whether or not RP is a professional service provider will turn on this.

Was RP ordinarily engaged in her profession as a PSW, but for the accident?

The plain meaning of ‘profession’ is a vocation with specialized training and/or certification. An individual’s profession is not dependent on whether or not they are employed. It is dependent on whether or not the individual has the training, competency, any required professional/regulatory certification and whether or not they are actively trying to obtain employment in that profession.

Practically speaking, can they do the job? Actively seeking employment is important, because if the individual stops seeking employment in their profession, they are no longer “ordinarily engaged in” that profession. The phrase “ordinarily engaged in” must be read in context with the rest of the section. “Ordinarily engaged in” can include employment, but that cannot be the exclusive meaning of the phrase given the section’s wording also includes profession and occupation. Broadly speaking, “ordinarily engaged in” a profession can also include training, the professional licensing or regulatory certification process and actively seeking employment. Basically, if the individual is taking steps to become employed in a profession, they are “ordinarily engaged in” that profession.

In this matter, RP was trained and certified as a PSW, but she had not yet obtained her first position as a PSW at the time of the accident. Coseco argued based on the current evidence produced, RP was not actively searching for a job as a PSW. Coseco submits that RP has not adduced evidence of her active job search, especially in the year prior to the accident. Coseco pointed out the large gaps of time in between the e-mails RP sent to potential employers.

During her testimony, RP explained that other than the e-mails, she also cold called potential employers and dropped off physical copies of her resume. She explained she was “not very good with computers”, so she utilised other means of job searching. RP explained she did not have copies of every e-mail she sent, only some of them. The Adjudicator accepted RP’s evidence as I find her to be credible and I find her explanation plausible. RP cannot be expected to have a perfect record of her job search activities, especially, because at the time she was conducting her job search, she did not know that her son would be involved in an accident requiring these records. No one is able to predict the future. To expect an individual would have a complete record of their activities years pre-accident would create too high a burden.

On this basis the Adjudicator found RP was actively searching for a position as a PSW prior to the accident. The Adjudicator also noted that It would run contrary to the consumer protection objective and the broad interpretation of the Schedule, if a catastrophically injured child was prevented from being cared for by his own mother, who is a trained and certified PSW, just because his mother was unable to obtain employment as PSW prior to the accident. An applicant should not be penalized for something completely out of his control. RP should not be prevented from caring for her son due to her inability to obtain employment, despite her best efforts, especially when the Schedule does not expressly require her to be employed prior to the accident. There is nothing in the Schedule that mandates a professional service provider must have prior experience.

Is RP required to prove an economic loss?

Since RP is a professional service provider, she is not required to prove an economic loss.

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