Attendant care based on Form 1, not incurred amount

On November 26, 2010 our client, Mr. Marcus, suffered serious personal injuries when he fell on a TTC bus at the age of 89. Mr. Marcus applied for and received statutory accident benefits from TTC Insurance, including an attendant care benefit. He also sought a determination of catastrophic impairment (“CAT”).

An Assessment of Attendant Care Needs (Form 1) was submitted on Mr. Marcus’s behalf. On the basis of the assessment, it was determined that Mr. Marcus required 24-hour a day attendant care at a rate of $6,566.29 per month. Following this assessment, Mr. Marcus hired a professional caregiver to provide him with attendant care services. Under the service contract, the caregiver was to provide 40 hours of weekly live-in home attendant care at a base rate of $1,820 per month plus overtime. The TTC subsequently began paying Mr. Marcus an attendant care benefit in the amount of $3,000 per month, being the maximum benefit payable to an individual who has not suffered a catastrophic impairment.

Mr. Marcus continued to receive professional attendant care services up to the time of his death on May 30, 2013. At the time of his death, Mr. Marcus had paid his professional caregiver a total of $76,679 for attendant care services, exclusive of severance pay. Meanwhile, the TTC had paid Mr. Marcus a total of $35,000 in attendant care benefits.

Mr. Marcus and the TTC were unable to resolve the CAT issue at mediation and an arbitration was scheduled with FSCO. The proceeding was continued in the name of Mr. Marcus’s estate after he passed away. Before the arbitration hearing, the parties requested a preliminary issue hearing to determine the quantum of past attendant care benefits that would be payable to the estate, should it be determined at the arbitration that Mr. Marcus had suffered a catastrophic impairment.

The sole issue at the preliminary issue hearing was as follows:

Where the attendant care services are provided by a professional aide, should the quantum of the Attendant Care Benefit be assessed on the basis of the amount set out in Form 1 (Assessment of Attendant Care Needs), or on the basis of the amount actually paid to the professional?

The TTC took the position that the past attendant care benefit should be paid on the basis of the incurred amount (i.e. $76,679 total less amounts paid). Mr. Marcus’s estate took the position that the benefit should be paid on the amount set out in the Form 1 (i.e. $6,000 per month less amounts paid).

On January 13, 2014, Arbitrator H. Michael Kelly released his decision on the preliminary issue. Applying the Court of Appeal’s reasoning in Henry v. Gore Mutual Insurance Company, Arbitrator Kelly held that once a claim penetrates the threshold for entitlement on the basis that the benefit has been “incurred,” the quantum of the benefit is determined on the basis of the Form 1 and not on the amount of the incurred expense. Therefore, Mr. Marcus’s estate will be entitled to receive past attendant care benefits at a rate of $6,000 per month, less amounts paid, in the event that it is determined that he suffered a catastrophic impairment as a result of the accident.

Though the Henry decision applied specifically to non-professional service providers, the Marcus decision makes it clear that the Court of Appeal’s reasoning applies equally to professional service providers. This finding is especially significant in light of Ontario Regulation 347/13, which came into effect on February 1, 2014. Regulation 347/13 has effectively reversed Gore by providing that the amount of the attendant care benefit payable to non-professionals “shall not exceed the amount of the economic loss sustained.” However, the Regulation applies to non-professional care providers only. Unless and until the legislature enacts a similar regulation with regards to professional care providers, the quantum of attendant care benefits will continue to be based on the amount set forth in the Form 1. In light of this distinction, injured persons would be well served to hire professional service providers to ensure that they receive benefits that reflect their needs, and not their means.

The TTC is appealing Arbitrator Kelly’s decision.


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