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Adjudicator Denies Additional Attendant Care Benefits Expenses

July 27, 2022

In the recent Licence Appeal Tribunal (“LAT”) decision of Joslin-Mielke v. Pembridge Insurance Company (19-012118/AABS), adjudicator Reilly concludes that the Applicant is not entitled to payment for any Attendant Care Benefits (“ACB”) expenses over and above the amounts already paid from December 20, 2016 to May 23, 2018. Specifically, as the Applicant lacked details and documentation supporting that any additional ACB amounts met the definition of an “incurred expense” according to Section 3(7)(e) of the Statutory Accident Benefits Schedule (SABS) or deemed incurred under Section 3(8) of the SABS.

In this claim, the Applicant was involved in a motor vehicle accident on May 23, 2016. The Applicant applied for and sought ACB from December 20, 2016 to May 23, 2018. During June 2016, the Applicant submitted an Assessment of Attendant Care Needs (“Form 1”) completed by Ms. Sharat Chawla, an occupational therapist, where she recommended monthly ACBs in the amount of $8,708.08. The Respondent agreed to fund a monthly ACB of incurred expenses up to $3,000.00.  During November 2016, Ms. Chawla submitted an updated Form 1, recommending a monthly ACB in the amount of $4,476.19. In response, the Respondent asked Ms. Angela Bertolo, an occupational therapist, to complete a section 44 assessment. During December 2016, Ms. Bertolo determined the monthly ACBs to be $984.52. Based on the assessment from Ms. Bertolo, the Respondent reduced the benefit effective January 1, 2017.

Ms. Chawla’s Form 1 addressed safety and emergency needs at night while sleeping whereas Ms. Bertolo’s Form 1 did not address the same. The Respondent paid for attendant care expenses between December 20, 2016 and May 23, 2018 but denies the ACB was incurred or deemed incurred beyond the amounts already paid.

The Adjudicator agreed with the Respondent and stated, “The invoices also do not contain additional detail to show what exactly was done each day for the applicant. I am therefore unable to identify the actual ‘goods and services to which the expense relates’ as required in the first criterion (i.e. section 3(7)(e)i) to establish that an expense is incurred under the Schedule by outlining what services were provided and when; (ii) why they were requested and provided; (iii) how long the services were on any given day; (iv) how the total number of hours was arrived at; and (v) what the hourly rate was. There was no additional documentation before me to assist in this regard. Therefore, the applicant does not, on the basis of the evidence before me, meet the first criterion of an incurred expense.”

In addition, the Applicant argued that, “the ACB expenses are deemed incurred. If the Tribunal finds an expense was not incurred because the respondent unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may deem the expense to have been incurred, pursuant to section 3(8) of the Schedule.

Based on the lack of details and supporting documentation of the services provided, Adjudicator Reilly stated, “I find no reason to deem ACBs were incurred. There is no evidence the payments were unreasonably withheld or delayed by the respondent. There is evidence of the differing opinions of the parties OTs. As outlined above, I prefer the Form 1 of Ms. Bertolo over Ms. Chawla’s. I find the recommendations of Ms. Bertolo to be reasonable. I also find that the applicant’s medical condition by mid 2017 continued to be improving and her fractures were fully healed. By January 2017 the applicant had also returned to work, additional evidence that Ms. Bertolo’s assessment and recommendations for ACB are reasonable.”

Considering the above, the Adjudicator found the Applicant was not entitled to payment for any expenses over and above the amounts already paid by the Respondent from December 20, 2016 to May 23, 2018 as the amounts do not meet the definition of an “incurred expense” according to Section 3(7)(e) of the SABS and cannot be deemed incurred under Section 3(8) of the SABS.

Read the decision in full detail here:
Joslin-Mielke v. Pembridge Insurance Company (19-012118/AABS)

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