Author(s): Stephen M. Birman

November 12, 2014

An accident benefits insurer must consider retroactive attendant care claims advanced in an Assessment of Attendant Care Needs (Form 1) that is submitted to the insurer.

In Kelly v. Guarantee Company of North America (“Guarantee Company”), this issue was recently decided by Arbitrator John Wilson in favour of the insured, where the Guarantee Company argued that it was not required to pay attendant care expenses incurred prior to the submission of a retroactive Form 1.

The decision is important, as unrepresented and seriously injured accident victims who are in need of attendant  care services are frequently unable to comply with the technical requirements for claiming attendant care expenses under the Statutory Accident Benefits Schedule (SABS).

In Kelly, the applicant, Stephanie Kelly, suffered a severe brain injury in a motor vehicle accident on April 6, 2009, from which she was found to be catastrophically impaired. Following the accident, Ms. Kelly was transferred to St. Joseph’s Health Care in London, Ontario, where she remained until June 23, 2009, when she was discharged home with 24 hour supervision.

It was not until February 1, 2013, that Ms. Kelly commissioned a retroactive attendant care report covering the period between April 6, 2009 and June 23, 2009, which assessed her Form 1 care needs during this period at $7,061.83 per month.

The SABS require an insurer to pay for all reasonable and necessary attendant care expenses. Section 42(1) of the SABS requires that an application for attendant care benefits be in the form of an Assessment of Attendant Care Needs (Form 1) and be prepared and submitted to the insurer by an occupational therapist or a nurse.

In Ms. Kelly’s case no Form 1 covering the period of Ms. Kelly’s hospitalization was submitted to the insurer until February 1, 2013 (almost four years after the attendant care expenses were incurred). The Guarantee Company refused to pay for the
attendant care services provided to Ms. Kelly by her family members and the hospital. It argued that since no Form 1 was submitted to the insurer during the period of Ms. Kelly’s hospitalization, it was not required to pay attendant care expenses during that period. The Guarantee Company relied upon Section 42(5) of the SABS, as set out below:

42(5) “An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with this section is submitted to the insurer.”
Arbitrator Wilson disagreed with the narrow approach taken by the Guarantee Company noting that, “given the seriousness of the situation and complexity of the accident benefit scheme, it is not surprising that Ms. Kelly or her treating physicians did not immediately turn their minds to obtaining a Form 1.”

Arbitrator Wilson found that Section 42(5) allows insurers to pay attendant care benefits before the submission of a Form 1 and held that, at minimum, this section suggests that the absence of a Form 1 is not a bar to retroactive claims for attendant care services. Referring to the principle of statutory interpretation that requires insurance coverage exclusions to be applied narrowly, Arbitrator Wilson required significantly stronger statutory language than that which is set out in Section 42(5) before permitting the insurer to deny a retroactive attendant care claim.

That is not to say that retroactive attendant care benefits will always be payable upon submission of a Form 1. Arbitrator Wilson, relying on the authority of the decision of Arbitrator Bayefsky in T.N. and Personal Insurance Company of Canada (FSCO A06-000399, June 26, 2012), held that once a Form 1 is submitted the question turns to, “whether the evidence prior to the receipt of the Form 1 reflects the analysis contained in the Form 1”.

In Kelly, the applicant’s Form 1 and the report accompanying it disclosed a “plethora of documentary evidence”, in circumstances where 24 hour care continued to be necessary once Ms. Kelly left hospital. In addition, the insurer filed no evidence to contradict the findings in the Form 1 report despite having access to all of the medical evidence and the ability to conduct an insurer’s assessment, which it did not do. These factors led to the Arbitrator’s finding that the retroactive care expenses claimed by Ms. Kelly were reasonable and necessary.

An insurer cannot deny past attendant care claims solely on the basis that they are advanced retroactively in a Form 1 report. This finding is important as is the Arbitrator’s unwillingness to take an overly technical approach to interpreting the SABS in circumstances where the benefits available under the SABS were clearly warranted. Accident victims can be comforted by the fact that  insurers will not be able to rely solely on the timing of the Form 1 submission to deny critical post accident attendant care expenses and attendant care assessors should ensure their reports consider an insured’s attendant care needs in the periods prior to the Form 1 assessment.

View PDF version: Accident Benefit Reporter | Vol 15, Issue 2 | November 2014


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