September 8, 2014

SABS Update- If I could turn back time, If I could find a way, I’d apply for past attendant care, and you’d pay

Kelly v Guarantee Company of North America, FSCO Decision A12-006663, August 7, 2014, Arbitrator John Wilson

MVC April 6, 2009. Ms. Kelly was catastrophically injured in a single car accident. After being treated at the critical care trauma unit she was admitted to the Acquired Brain Injury Programme at Parkwood Hospital. She was discharged June 11, 2009 to 24-hour supervision at home.

During the time at Parkwood, and for a few weeks after discharge supplementary attendant care services were provided to Ms. Kelly by her parents and Parkwood Hospital. However, an application for attendant care services was not made until almost 4 years later when an occupational therapist completed a retroactive Form 1 covering the period of April 6, 2009 to June 23, 2009.

The Guarantee Company of North America (Guarantee) refused to pay the attendant care taking the position that a Form 1 cannot deal retrospectively with services provided prior to the provision of the Form 1 but only with subsequent care services. Guarantee also disputed that the attendant care services were payable since they were not “incurred” and were not reasonable in any event.

 

ANALYSIS

The issue on this application is whether a Form 1 for attendant care may be issued retrospectively.

Statutory Accident Benefits are aimed at providing prompt and timely financial assistance to those in need after an accident. It is meant to address the challenges of an injured person and to provide assistance without concern for fault or causation. As noted by Arbitrator Wilson, “it would seem strange that the failure to issue a form in a time of crisis should block an insured from ever claiming indemnity for any attendant care services that were found to be reasonable and necessary”.

While a Form 1 may be a pre-requisite to payment of attendant care services, its completion is not required before incurring any attendant care expenses. A retroactive Form 1 does not mean that an insured forfeits their right to attendant care benefits. A retroactive Form 1 may be issued. The analysis for a retroactive Form 1 is simply whether the evidence prior to the receipt of the Form 1 reflects the assessment contained in the Form 1.

In this case the only evidence as to the attendant care requirements was the Form 1 report issued by the OT. A review of the medical evidence showed that report to be credible and uncontradicted.

The services provided by Ms. Kelly’s family and Parkwood were also “incurred”. There were services demonstrably provided by parties entitled to claim compensation under the 1996 Schedule. The services provided were also reasonable and appropriate under the circumstances. Monthly attendant care of $7,061.83 was recommended by the Form 1 for care provided by professional staff and family members. This was reduced to the $6,000 per month limit. It was clear from the hospital records that Ms. Kelly required one to one care for her safety. Even at discharge she was prescribed twenty-four hour supervision “for safety and management of medical care”. The amounts claimed were reasonable given the range of support and supervision required. As Guarantee had not obtained their own expert opinion, there was no evidence to oppose that the amount was not reasonable.

 

IMPLICATIONS

Often we look at what services a client will need into the future. It is important to take time to conduct a retrospective analysis to see if there are services a client already used that can be claimed under the Statutory Accident Benefits.

 

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