Insured's spouse continues to be employed as a personal support worker and entitled to receive attendant care benefits.

December 04, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Walsh and Echelon

Decision Date: 2016-08-31

Heard Before: Adjudicator Benjamin Drory

Issues:

Mr. Michael Walsh was hurt in a car accident on November 24, 2014 and sought accident benefits from Echelon payable under the Schedule, however, when the parties were unable to resolve their disputes through mediation Mr. Walsh applied for arbitration at the FSCO.

The issues in this Preliminary Issue Hearing are:

1. Was Mr. Walsh’s spouse, Mrs. Walsh, providing attendant care services to him in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident, in accordance with s. 3(7)(e)(iii)(A) of the Schedule, such that economic loss does not need to be demonstrated?

2. Is either party entitled to expenses respecting this Preliminary Issue Hearing?

Result:

1. Mr. Walsh’s spouse, Mrs. Walsh, was providing attendant care services to the Applicant in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident, in accordance with s. 3(7)(e)(iii)(A) of the Schedule.Accordingly, economic loss does not need to be demonstrated.

2. The decision on expenses respecting this matter is deferred to the Hearing Arbitrator.

A Pre-Hearing was held in this matter on March 3, 2016 with Arbitrator Alan G. Smith, who set this Preliminary Issue Hearing.  The full matter concerns the extent of Mr. Walsh’s entitlement to attendant care benefits.  Both parties agree that Mr. Walsh is entitled to some quantum of attendant care benefits, and Echelon has in fact paid some attendant care benefits over time.  The preliminary issue to be addressed in this decision is whether attendant care benefits were “incurred” by Mr. Walsh pursuant to s. 3(7)(e)(iii)(A) of the Schedule.  That question turns on whether his attendant care service provider, Mrs. Walsh, provided those services in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident.  The parties agreed if the Arbitrator found in favour of Mr. Walsh on that question then the parties would seek an appointment with the Pre-Hearing Arbitrator to set a Hearing for what would be the remaining question in the proceeding—i.e., the quantum of attendant care benefits that Mr. Walsh may be entitled to.

Both parties mutually agreed on many of the facts of the case.  They agreed that this present inquiry is strictly a legal determination of how the facts of this case relate to the “incurred” provision s. 3(7)(e)(iii) of the Schedule. 

Mr. Walsh submitted that he was seriously injured in the motor vehicle accident and requires attendant care arising from it.  At the time of the accident, his wife was working as a trained professional Personal Support Worker (“PSW”).  She initially took some time off work to provide attendant care to her husband.  She eventually returned to work, but continued to provide Mr. Walsh with attendant care outside her normal working hours.  Mr. Walsh submitted that Echelon refused to pay portions of the attendant care benefits claimed because Mrs. Walsh continues to work as a PSW outside the home and has not demonstrated an economic loss.

Mr. Walsh submitted that Echelon’s denial of the benefit is improper.  The Schedule requires payment of an attendant care benefit under two alternate scenarios— (1) where the attendant care is provided by a “professional” (i.e., a person who provides the attendant care in the course of the employment, occupation, or profession in which she would ordinarily have been engaged, but for the accident), or (2) where the attendant care is provided by a non-professional who can demonstrate an economic loss as a result of providing attendant care.  Mr. Walsh submitted that Mrs. Walsh clearly falls into the “professional” category.  He noted that there is no requirement that a “professional” be arm’s length, and no requirement for a “professional” attendant to demonstrate an economic loss.  Mr. Walsh submitted that Echelon’s interpretation of the Schedule (which he suggested was that Mrs. Walsh could not provide attendant care to her husband and continue to work as a PSW outside the home) would render the distinction between the two alternate categories of attendant care providers meaningless, and would lead to an absurd result where even an arm’s length professional attendant could not have other employment.

Mr. Walsh underwent a number of occupational therapy assessments to determine his monthly attendant care needs.  It is submitted that Mrs. Walsh has been providing attendant care since the date of the accident (November 24, 2014).  She provided those attendant care services in accordance with the Assessments of Attendant Care Needs (Form 1s).  Mr. Walsh promised to pay his wife for the attendant care she provided in the amounts set in those assessments, subject to the $3,000.00 monthly non-catastrophic cap on attendant care benefits (catastrophic impairment was not a crystallized dispute between the parties at the time of this Hearing, although the parties acknowledged that could later change).  Mrs. Walsh is a certified PSW, having obtained a diploma from the National Academy of Health and Business Career College in 2011.  At the time of the accident, she was employed as a PSW at Darling Home for Kids in Milton, Ontario, where she provided attendant care services to severely disabled children.  She earned a wage of $15.50 per hour and worked variable hours, typically night shifts.

From the date of the accident (November 24, 2014) to February 28, 2015, Mrs. Walsh cancelled, missed, or turned down a number of shifts at her PSW job in order to provide her husband with attendant care.  On March 1, 2015, Mrs. Walsh commenced an unpaid leave of absence from her PSW job in order to provide Mr. Walsh with full-time attendant care.  In November 2015, Mrs. Walsh returned to her job as a PSW at the Darling Home for Kids, but continued to provide Mr. Walsh with attendant care outside her regular working hours.  Mrs. Walsh submitted in an Affidavit that Mr. Walsh has been unable to return to his self-employment as a carpenter because of his impairments, and he remains unemployed.  Mrs. Walsh also provided confirmation from her employer regarding time she was permitted off of work to care for Mr. Walsh.  Mr. Walsh submitted that Echelon has refused to pay an attendant care benefit except to the extent of Mrs. Walsh’s loss of PSW employment income.

The Arbitrator reviewed the wording of s. 3(7)(e)(iii)(A) and determined it is clear and the intention was that the attendant care services be provided by a professional in the health care industry.  While this would usually involve employing an arm’s length service provider, if a family member is trained and/or working in that field, the benefit will be payable for any work they did for the insured person, “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”.

Echelon advised that it has paid a total of $15,798.86 in attendant care benefits to date.  For the period from March-August 2015, monthly payments had been made in the amount of $2,184.56.  That figure was derived based on Mrs. Walsh’s economic loss.

Counsel for Echelon, submitted that pursuant to s. 19 of the Schedule, for attendant care benefits to be payable, expenses must have been “incurred” in accordance with the definition in s. 3(7)(e)(iii) of the Schedule.  He submitted that Mrs. Walsh was employed as a personal support worker in the evenings, and she allegedly provided Mr. Walsh with attendant care services during the daytime.  Therefore, she was not providing attendant care services during her course of employment, and as a result the “incurred expenses” definition has not been met.  From the date of the accident through February 28, 2015, Mrs. Walsh was not providing attendant care services “in the course of her employment, occupation or profession”, and had shown no evidence of economic loss.  During that period, Mrs. Walsh reportedly provided attendant care services to Mr. Walsh when she was not working.  As such, Echelon asserted that no attendant care benefits were owed for that timeframe.  Echelon further asserted that from March 1, 2015 and ongoing, Mrs. Walsh was not a professional service provider, and was not “in the course of her employment, occupation or profession” while providing attendant care services.  As such, the maximum quantum of attendant care owing for that timeframe was limited to Mrs. Walsh’s actual economic loss, subject to the services being reasonable and necessary.  Mrs. Walsh’s income while employed as a PSW at Darling Home for Kids was $2,184.56 per month.  Mr. Pollack submitted that for attendant care benefits to be payable, Mrs. Walsh must have provided attendant care services either in the course of the employment, occupation or profession that she was engaged in prior to the accident (subsection “A”), or she must have sustained an economic loss as a result of providing the attendant care services (subsection “B”).

Mr. Pollack advised that the Ontario Court of Appeal had held that if an economic loss on behalf of the attendant care service provider could be made out, the full Form 1 quantum for attendant care benefits was payable.  However, on December 17, 2013, the Ontario government filed Ontario Regulation 347/13 under the Insurance Act, which came into force on February 1, 2014. Under this framework, if Mrs. Walsh’s services fall under the definition of a professional service provider the full quantum of the Form 1 would be the maximum quantum potentially owing.  However, if Mrs. Walsh’s services fall under the definition of a non-professional service provider the maximum quantum owing would only be the amount of economic loss actually incurred. 

Mr. Pollack submitted that for the period from November 24, 2014 to February 28, 2015, Mrs. Walsh did not sustain any economic loss as a result of providing attendant care services to Mr. Walsh, as she remained employed.  She did not provide her attendant care services in the “course of” her “employment, occupation or profession” as she was not at work when the services were provided. 

The Arbitrator agreed with the submissions by both parties that the wording of s. 3(7)(e)(iii) creates a clear bifurcation between its (A) and (B) clauses.  By virtue of the “or” following clause (A), a service provider either falls under (A) or (B) when considering the “incurred” provision, and satisfying either clause is sufficient to satisfy that portion of the test.  Further, an analysis of the service provider’s economic loss is only an element of the (B) clause—it is not an element of the (A) clause. 

On this basis the Arbitrator found that a service provider falling into the (A) clause—i.e., one that did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged—does not need to establish economic loss for the purpose of these provisions.  This appears to have been a deliberate effort of legislative drafting, and I accept that if the legislature had intended for the provision to read differently, it could have done so.  The Arbitrator also accepted that the legislative intent behind these provisions was an intention to prevent abuse of the attendant care benefit by family members who are not trained professionally to do it.

The sole question is whether the services provided by Mrs. Walsh to the Applicant were done in the course of the employment, occupation or profession in which she would ordinarily have been engaged.  The Arbitrator found the answer is yes, based on both the case law and the legislative intention presented.   's

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