February 3, 2014

SABS Update – Form 1 Assessment or Bill For Services Rendered: Form 1 Rules

For the week of February 3 to February 7, 2014

Marcus Estate v. Toronto Transit Commission Insurance Company Limited, Preliminary Issue Hearing in writing before Arbitrator H. Michael Kelly, FSCO A12-006408, released January 14, 2014.

The Applicant, Reuben Marcus was injured while a passenger on a TTC bus on November 26, 2010.  He received accident benefits from the TTC Insurance Company Limited (“TTC Insurance”) pursuant to the Statutory Accident Benefits Schedule(“SABS”).  Mr. Marcus sought a determination of catastrophic (“CAT”) impairment, which could not be resolved on mediation.  Therefore Mr. Marcus applied for arbitration.  Arbitration is scheduled for March 10, 2014, and Mr. Marcus’ CAT status will be determined at that time.  As Mr. Marcus died on May 30, 2013, his CAT status will apply to benefits incurred until that date.

On this preliminary issue hearing, the parties sought to determine the quantum of Mr. Marcus’ attendant care (“AC”) benefits, should he ultimately be designated as catastrophically impaired.  The parties accepted that he was entitled to AC.  Under the Form 1 submitted, Mr. Marcus was entitled to $6,566.25 monthly for attendant care.  Mr. Marcus received $3,000 per month per the SABS.  He had hired a professional aide who provided 40 hours per week of care with possible overtime.  At the base rate, he was paid $1,820 per month to provide these services.

TTC Insurance took the position that Mr. Marcus was entitled to the actual cost of the services rendered by the professional care provider, not the amount determined under the Form 1 ($3,000, or $6,000 until his death if he was found to be catastrophically impaired).  Counsel for TTC Insurance attempted to distinguish the facts of this arbitration from those inHenry v Gore Mutual Insurance Company, which concerned AC services provided by family members.  He proposed that in Henry, the exact quantification of incurred expenses was impossible. Here, however, the quantum could be calculated with certainty.

In essence, TTC Insurance was attempting to conflate the determination of entitlement (s.  3(7)), with determination of quantum (s. 19(2)) under the 2010 SABS.   Subsection 3(7) sets out the definition of “incurred” expenses.  In order to meet the definition, the insured must receive the services, must have paid, or promised to pay for the services and must have received the services from a provider in the ordinary course of employment (or, as in Henry, from a person who sustained an economic loss).

Arbitrator Kelly was not persuaded by this argument.  First, it rested on several untenable assumptions: that the caregiver provided all the goods and services set out in the Form 1; that the caregiver did not provided additional services beyond those described in the Form 1; and that the caregiver calculated his fees in compliance with s. 19(2). More importantly, the arbitrator found that if the legislature had intended that ss. 3(7) and 19(2) were meant to distinguish professional from non-professional services, it would have addressed this distinction explicitly, and it did not.  Once the need for care was established by meeting the requirements of s. 3(7), the quantum was determined under the methodology set out in s. 19(2).

Therefore Arbitrator Kelly decided that the Marcus Estate was entitled to receive AC benefits at the rate of $6,000 per month, for the period to be determined at arbitration, less amounts paid, should the arbitrator find that Mr. Marcus had suffered catastrophic impairment.

 

IMPLICATIONS

Under the 2010 SABS and following the Court of Appeal in Henry, Mr. Marcus is entitled to receive $6,000 in AC until the date of his death.  In order to receive payment for additional care over and above that provided by his professional caregiver, Mr. Marcus’ family and friends will merely have to demonstrate an economic loss.   However, on February 1, 2014, Ontario Regulation 347/13 comes into effect.   For collisions occurring on or after that date, the AC benefit payable to non-professionals “shall not exceed the amount of the economic loss sustained”.  This will make it very difficult financially for family members to continue to provide care to their loved ones.  Professionals will be required on a more extensive basis, further disrupting the already challenging home environment of seriously injured individuals.

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