A decision of the Licence Appeal Tribunal (“LAT”) released in August 2017, A.H. and Belair, had very damaging results for seriously injured motor vehicle accident victims across Ontario until the Financial Services Commission of Ontario (“FSCO”) stepped in to correct the resulting injustice earlier this month.
The “attendant care benefit” is intended to pay for expenses incurred for a personal aide or attendant to look after a seriously injured motor vehicle accident victim. In order to calculate a person’s monthly attendant care needs, a qualified occupational therapist or nurse will complete an Assessment of Attendant Care Needs (Form 1), which will outline the degree of care and/or supervision that is required. The identified hourly care needs are multiplied by stipulated amounts ranging from $14.00 to $21.11. The insurer need only pay up to the resulting monthly maximum.
For the duration of the current accident benefits system (which has undergone variations throughout its history) of greater than 20 years, automobile insurers have paid the attendant care benefit up to the calculated monthly maximum. As a result of the decision in A.H. and Belair, insurers applied a policy that it would only pay the invoices of aides or attendants based on the hourly rates used at the stipulated levels to calculate the monthly maximum for which they were responsible.
This flawed approach was applied until this month, when FSCO finally stepped in. During the past months, many seriously injured accident victims could not access attendant care services despite the fact that, in some cases, they were in danger without proper supervision. Calculating the monthly maximum by use of the artificially reduced hourly rates at different levels would result in a provider earning substantially less than the actual market rate and sometimes even less than minimum wage. As such, it became difficult to find any professional willing to provide the service.
As of April 14, 2018, Superintendent’s Guideline No. 01/18: Attendant Care Hourly Rate Guideline introduced the requirement that “insurers shall use the resulting monthly attendant care benefit amount to pay the benefit.” This served to correct the egregious wrong that insurers had conducted in their collective interpretation of A.H. and Belair. You can find the new Attendant Care Hourly Rate Guideline Here:
This is another stark indication of the difficulties injured accident victims and their lawyers are encountering when dealing with the LAT.
