How Ontario tribunal looks at professional attendant care providers

The Ontario Licence Appeal Tribunal (LAT) seems to have extended the categories of individuals who are found to be professional providers for the purposes of attendant care, Philippa Samworth, partner at Dutton Brock LLP, said on Tuesday.

Speaking at the Ontario Insurance Adjusters Association’s (OIAA) 2018 Claims Conference in Toronto, Samworth discussed a case focusing on the issue of “incurred” under Section 3(7)(e)(iii) of the Statutory Accident Benefits Schedule (SABS). That section states that a person who provides attendant care services must a) do so “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident” and b) “sustain an economic loss as a result of providing the goods or services to the insured person.”

In one case – J.C.C. & Echelon General Insurance Company, issued on Dec. 6, 2017 – the adjudicator found that interpretation of SABS does not require the care provider to be exclusively employed as a healthcare professional.

In that case, the insured hired a Ms. Salazar to provide attendant care services. Salazar had obtained a personal support worker (PSW) certificate in February, 2012. She worked for some time immediately afterward, then went to Walt Disney World, where she provided housekeeping services, before working for a “brief period of time” as a private PSW in 2013. Adjudicator Avvy Go noted in the decision that she then went back to school, got a lab tech certificate and worked as a lab tech for 1.5 years. At the actual time of accident, she was working part-time as an event planner, where she met the insured.

“She claims she provided after-the-accident attendant care services to the insured for four or five months and a key piece of the facts is after she finished providing her attendant care services to the claimant, she actually did go on and actually become employed with Spectrum Health as a PSW,” Samworth said during the seminar, Accident Benefits: The Top Ten LAT Cases of 2017, held at the Metro Toronto Convention Centre in downtown Toronto.

“The adjudicator said she could work as an event planner during the day, PSW at night. There’s nothing that says you just have to work as a PSW, you just have to have those qualifications,” Samworth said.

“Most importantly, after the accident and at the time, she was providing the attendant care services, she went on to continue as a PSW,” Samworth said. “The schedule does not require the care provider to be exclusively employed as a healthcare professional and it’s also not limited to a healthcare professional who is engaged in that profession alone.”