The recent Preliminary Issue decision in Walsh and Echelon (FSCO A15-007448, August 31, 2016) confirms that an economic loss does not need to be demonstrated in order to be entitled to attendant care benefits, if the service provider is providing attendant care services in the course of the employment, occupation, or profession in which they would ordinarily have been engaged but for the accident, in accordance with section 3(7)(e)(iii)(A) of the Statutory Accident Benefits Schedule ("Schedule"); even in cases where the service provider is not at arm's length with the Insured.
In Walsh and Echelon, both parties agreed that the Insured, Mr. Walsh, was entitled to some quantum of attendant care benefits; however, the Preliminary Issue Hearing was to determine whether attendant care benefits were "incurred" by Mr. Walsh pursuant to section 3(7)(e)(iii)(A) of the Schedule.
The answer to that question turned on whether his attendant care service provider, his spouse, Mrs. Walsh, provided attendant services in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident.
Section 3(7)(e)(iii)(A) of the Schedule provides that:
(e) ... an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,
- the insured person has received the goods or services to which the expense relates,
- the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
- the person who provided the
goods or services,
- did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
- sustained an economic loss as a result of providing the goods or services to the insured person; (emphasis added).
Mr. Walsh argued that his wife was a Personal Support Worker (PSW) at the time of the accident and initially took some time off work to provide him with attendant care following the accident. While she eventually returned to work, she continued to provide Mr. Walsh with attendant care outside of her normal working hours.
Echelon refused to pay the attendant care benefits claimed because Mrs. Walsh continued to work as a PSW outside the home and had not demonstrated an economic loss. Counsel for Echelon argued at the Preliminary Issue Hearing that because Mrs. Walsh was employed as a personal support worker in the evening, and allegedly provided Mr. Walsh with attendant care services during the daytime, she was not providing attendant care services during her "course of employment, occupation or profession". As a result, Echelon submitted that the "incurred expenses" definition had not been met.
Arbitrator Drory considered the provisions of the legislation and the amendments to the Schedule that came into force on February 1, 2014, O. Reg. 347/13, and which modified section 19(3) of the Schedule to include the following limitation on the amount of attendant care payable:
style="padding-left: 30px;">section 19(3)(4): Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the "attendant care provider") to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.
Arbitrator Drory also reviewed section 3(7)(e)(iii) of the Schedule.
Following same, Arbitrator Drory agreed that the wording of section 3(7)(e)(iii) created a clear bifurcation between its (A) and (B) clauses.
Additionally, although section 19(3)4 of the Schedule, which provides that the amount of an attendant care benefit will be limited to the amount of a non-professional attendant's economic loss, it was noted that no such limit was imposed on attendant care provided by a "professional".
Arbitrator Drory held that an analysis of the service provider's economic loss was only an element of the (B) clause—it was not an element of the (A) clause.
Arbitrator Drory concluded that it followed 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—did not need to establish economic loss for the purpose of the provisions. Arbitrator Drory accepted that the legislative intent behind these provisions was to prevent abuse of the attendant care benefit by family members who were not trained professionally to do it.
Cognizant of the legislative intent behind these provisions, Arbitrator Drory found that 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. Arbitrator Drory held:
In the present case, Mrs. Walsh was working outside the home as a PSW for remuneration at the time of the accident. She also continued working as a PSW outside the home for remuneration at various times following the accident. Meaningful evidence in this case established that Mrs. Walsh's employer granted her time off and a leave of absence specifically to care for Mr. Walsh. I do not agree with Echelon's suggestion that Mrs. Walsh was "unemployed" during the time that she was on an approved leave of absence by her employer, specifically for the purpose of caring for her husband. I concur with Arbitrator Fadel's conclusion in Josey that if a family member is trained and/or working in the healthcare field, then the attendant care benefit ought to be payable for work they did for the Insured in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident.
Arbitrator Drory also did not accept the argument that clause (A) of the Schedule mandated that a professional healthcare aide be at arm's length. He instead found that it fit with the legislature's intention to restrict access to attendant care benefits by untrained family members and friends as reflected in the 2010 and 2014 amendments. Where a family member was a trained professional working in the relevant field, Arbitrator Drory found that concerns respecting qualification were directly addressed. Arbitrator Drory noted that it would be odd, as a matter of public policy, to mandate that Insureds with trained professionals in their direct families be obligated to arrange equivalent support services from outside the family in order for it to be compensable.
In the present case, as Ms. Walsh was providing attendant care services to Mr. Walsh in the course of her employment, occupation, or profession, an economic loss did not have to be established. As a result, attendant care would be payable at the Form 1 rates, without need to limit the amount to the actual economic loss incurred.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.